Lai Kwok Ying v. Public Way Investments Ltd and Another

DCCJ 4163/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4163 OF 2005

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BETWEEN

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Coram : H.H. Judge Chow sitting in Chambers

Date of Hearing : 9th June 2006

Date of Handing Down Decision : 17th August 2006

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DECISION

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1. This is an application by the Plaintiff for an order that the Order of H.H. Judge C.B. Chan in Chambers dated 26 August 2005 be continued until after the trial of this action or further order.

2. On 26 August 2005, H.H. Judge C.B. Chan made the following order:-

"It is ordered that:-

The 1st Defendant whether by itself, its directors, officers, agents or otherwise whosoever and the 2nd Defendant whether by himself or his agents or servants or otherwise whosoever and each of them be restrained from:-

Intimidating, molesting, assaulting, battering, harassing, threatening, pestering or interfering with the Plaintiff, his families and his colleagues;

Communicating, whether by oral, telephonic or electronic means or in writing or howsoever (save for communications between the parties' respective solicitors) with the Plaintiff, his family members or his colleagues;

Coming or remaining within 250 metres of the Plaintiff's premises where he lives or entering the Plaintiff's places of work the addresses of which are set out in Schedule C hereto;

until after the trial of this action or further order;"

3. On 13 September 2005, H.H. Judge C.B. Chan made an order in terms of the consent summons taken out by the parties for an order that there be an order in terms as per the draft order containing an undertaking to the Court instead of an injunction annexed thereto. The Undertaking begins with "The Defendants undertake to the Court that until further order of the Court that ......."   The contents of the Undertaking are the same as paragraph (1)(a)(b) and (c) listed out under paragraph 2 of this Decision.

The Plaintiff's case

4. The Plaintiff is a discharged bankrupt. Prior to his bankruptcy, he incurred a debt of about 25 million dollars ("the Loan") which he borrowed from the 1st Defendant.   On 24 November 2003, he was discharged from his bankruptcy.

5. In about 2001, the Plaintiff met the 2nd Defendant by chance while he was having dinner with his friend at a restaurant in the name of "牛之家火鍋" at Tak Hing Street, Kowloon. Some 5 minutes later the 2nd Defendant came to his table and asked him to go outside the restaurant since he had something to talk to him.   He did accordingly but as soon as he was outside the restaurant, he found 3 other men waiting for him there and one of them was a Mr. To ("To"). The 2nd Defendant told me that To would deal with him in respect of the Loan on behalf of the 2nd Defendant.   To's arm violently pressed against his shoulder and the other two persons pushed him to a dark corner and searched his bag. They seized his wife's photo from his wallet and took away a utility bill from his bag which showed his home address. Before they left, the 2nd Defendant asked To to take a photo of him, which he did under his protest.

6. On or about 28 November 2001, the Plaintiff was accompanied by his then employer, Mr. Lee Hoi Nam of Tak Kam Construction Engineering Ltd. to the 2nd Defendant's office for the purpose of settling the dispute.   Mr. Lee Hoi Nam represented to the 2nd Defendant that he would lend $30,000.00 to the Plaintiff for giving it to the 2nd Defendant for settlement.   About a few days later, To called the Plaintiff to meet him at Eaton Hotel, Nathan Road, Kowloon, Hong Kong.   Under this threat, he gave HK$30,000 cash to To a few days later.

7. On or about 25 November 2004, To rang him up, saying that he was staying at the entrance to the site office in Fanling where the Plaintiff was working, and asked him to come out to meet him. The Plaintiff and his elder brother went out to meet To.   To was accompanied by 2 other men.   To claimed that he was authorized by the 2nd Defendant to collect the loan.  To said that if he did not repay the debt, he would make his family break up and people die.

8. On or about 7 December 2004, To phoned him up.   To reiterated that he was authorized by the 2nd Defendant to collect the said Loan. The Plaintiff said that he was unable to pay the Loan.   To said fiercely that if he did not repay the Loan, he would make him not being able to make a living, make him out of job, without peace and restless.   He was going to get him for sure.   The Plaintiff was frightened and made a report to the police.

9. On or about 13 December 2004, a funeral floral stand was placed at the entrance of the Plaintiff's site office in Fanling.

10. On about 31 December 2004, more than 10 notes in Chinese writing were posted all over the wall at the entrance of his site office in Fanling.   The note bore a photo of his.

11. On 1 August 2005, 4 young men armed with beef-knives and hammers arrived at his site office in Fanling, and looked for him to collect the Loan.   But he was not there.   They damaged his computers and furniture before leaving.

12. On or about 3rd August 2005, a threatening note in Chinese writing was delivered to his office. The note said that last time, the place of business was nursed; next time, people will be chopped up; repay the money immediately, thirty million; Chiu.

13. On 19 August 2005, at about 9:30 p.m. 8 bloody chicken heads were found at the entrance of his site office in Fanling.   He felt that his life was and is being threatened.   The incident was discovered by a police patrol car.

14. On 22 August 2005 at about 10:00 p.m. a note in Chinese writing and a bottle of liquid were placed at his site office. The note bore words to the effect: Lai Kwok Ying, repay the money without delay, Chiu Wai Mo. When opened, the bottle emitted a strong smell of methyl alcohol or kerosene.

15. On 3 March 2006, the Plaintiff's application for continuation of the order of H.H. Judge C.B. Chan in chambers dated 26 August 2005 interim injunction was heard by H.H. Judge H.C. Wong.  The learnt judge adjourned the hearing, and the reasons for adjournment was set out as follows:-

"Plaintiff initially indicated to D2 by letter on 27 February 2006 that he would not be making an application for injunction.   He repeated this in Court today, but asked that D2 continues with his undertaking on 26 August 2006.   The D2 refused to give a further undertaking after explaining the procedure to Plaintiff, he renew his application of his 26 August 2005 summons.  He further asks for leave to reply to D2's affirmations of 25 January 2006 and 1 August 2006. He also indicates that he wishes to instruct solicitors ...... the matter is adjourned and order of directions given. No interim injunction granted due to the Plaintiff's failure to show the need."

16. The Defence Counsel submits that after the making of the order on 3 March 2006, there was neither an effective interim injunction nor undertakings given.   That is not correct.   The learnt judge simply adjourned the hearing without making any order which affects or supersedes the order relating to the Defendants' undertaking.   Therefore the order relating to the undertaking continued.

17. The Defence Counsel submits that the Plaintiff's case is very weak and is tainted with mere speculations without any credible evidence to implicate the Defendants.   I simply do not agree.   The Defence Counsel condescends into particulars of the case, trying to demonstrate how incredible the Plaintiffs' evidence is.   At this stage, it is not appropriate for me to make any findings of fact in this case.   What I am concerned is whether there is a serious question to be tried.

18. The Defence Counsel submits that nothing has happened since the last hearing where no interim injunction was granted and no undertaking was given.   There is no urgency and practical need for my interim injunction. It is not suggested that the way of life of the Plaintiff was in approving affected by the lack of interim injunction and/or undertakings for the past three months.   It is not suggested that life cannot continue in a normal way.   It is not correct to say that there is no undertaking. There is still in force the order relating to the undertaking made by H.H. Judge C.B. Chan on 13 September 2005, and during the period in which the undertaking operates, the Plaintiff leads a peaceful life.

19. The Defence Counsel submits that because of his letter dated 27.2.2006, the Plaintiff disowns his application for injunction.   Whether the plaintiff actually wants any protection from this Court is doubtful. The said letter reads: -

"I refer to your letter dated 23rd February 2006.   I feel obliged to set the record straight. The hearing on 3rd March 2006 is not my application but yours.  Please refer to my former lawyer's letter dated 3rd October 2006 in which I have indicated that I am happy with your client's undertaking given in the Order of Judge Chan dated 13th September 2006.   You did not reply to the letter. Therefore, the hearing on 3rd March 2006 will be your application for discharging your client's undertaking. I put on record that I am not interested to continue the first injunction order of Judge Chan dated 26th August 2006.

Since it is your application, it is your duty to decide how to conduct the hearing."

20. In this letter the plaintiff indicates that he was not interested to continue the injunction order.   Obviously this is because he is happy with the Defendants' undertaking given in the Order of Judge Chan dated 13th September, 2006.   The undertaking provides the protection he wants. This explains why he is happy with the undertaking.   That provides an answer to the Defendants' query as to whether he wants any protection from this Court.

21. The Defence Counsel argues that there is no evidence to show that the 1st Defendant had authorized the 2nd Defendant and/or other persons to commit the allegations made by the Plaintiff. It is the 2nd Defendant who was acting either in his own capacity and/or ultra vires as director/shareholder of the 1st Defendant.   The Plaintiff has no case against the 1st Defendant.

22. The 1st Defendant is a limited company, and not a natural person.    It has to rely on natural persons to carry out its acts.   It is artificial to say that the 1st Defendant is not connected with the acts of the 2nd Defendant, because the 2nd Defendant is its director. There is no evidence from the 1st Defence to disclaim the 2nd Defendant's acts as its acts.   Both Defendants are represented by the same solicitors' firm. On this basis, there must be no conflict of interests between them, otherwise they would not be so represented. If the 2nd Defendant acted ultra vires as director / shareholder of the 1st Defendant, there would be conflict of interest, and he should not be represented by the same solicitors' firm which also represents the 1st Defendant.   In the premises the 1st Defendant is closely connected to, and cannot be divorced from, the acts allegedly committed by the 2nd Defendant.

23. The Defendants submitted that Paragraphs 1 (a) and 1 (b) of the proposed injunction are defective. It is too vague to refer to "families" and "colleagues" of the Plaintiff. It is too broad to refer to "communicating".   "Families" are "family members" of the Plaintiffs.   There is no conceptual uncertainly about this term.   The Plaintiff's wife's photo was taken away.   She can be recognized by the Defendants. She needs protection.   "Colleagues" are those who work together with the Plaintiff.   There is no conceptual uncertainty about this term.   On 1 August, 2005, when the Plaintiff was away from his site office in Fanling, a group of young men armed with beef-knives and hammers, damaged the computers and furniture in this office.   Clearly, his colleagues need protection.     The term "communicating" is a commonly used word in our daily language.   There is no better word that can be used in its place.   The proposed injunction is to ensure that there will no contact between the Defendants and the Plaintiff, his family members and his colleagues so that they can lead a peaceful life.   The Defence Counsel submits that on the basis of the proposed injunction, it would be a breach of the court order even if the Defendants were sending a Christmas card to the "families"/ "colleagues" of the Plaintiff.  In view of the background of this case, I cannot find any reason for the Defendants to send a Christmas card to them.

24. There is a serious question to be tried in this case.   No prejudice will be caused to the Defendants if an injunction order is granted against them. If this is not granted, the incidents alleged by the Plaintiff may repeat themselves. On the balance of convenience, I ought to exercise my discretion in favour of the Plaintiff.   For the reasons stated above, I make an order in terms of the application sought by the Plaintiff.

Costs

25. I make an order nisi, to be made absolute in 14 days' time, that the Defendants do pay costs of this application to the Plaintiff, to be taxed, if not agreed, with certificate for Counsel.

The Plaintiff: represented by Mr. Robert Andrews, instructed by M/S. Y.L. Yeung & Co., Solicitors.

The Defendants: represented by Mr. Szeto Park Patrick, instructed by M/S. Paul C.W. Tse & Co., Solicitors.