Capital Source Holdings Ltd and Others v. Persons Entering or Remaining Without the Consent of the 1st and 5th Plaintiffs At the Properties Known As Office 3301 and Office 3302 on 33rd Floor The World Trade Centre and Others

HCA 2119/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2119 OF 2013

____________

____________

Before: Hon L Chan J in Court

Date of Hearing: 28 January 2014

Date of Decision: 28 January 2014

_____________

D E C I S I O N

_____________

1.This is an ex parte application by the 5th plaintiff for an order of committal against four respondents.  There is also an alternative application for leave to commence committal proceedings against these respondents.

2.Mr Chan, counsel for the 5th plaintiff, confirmed that he is asking for a committal order and a draft order has been presented for my consideration.  To the extent that this application is for an ex parte committal order and not for leave to commence committal proceedings, it is contrary to Order 52 rule 2(1) of the Rules of High Court.  The rule provides that:

“No application for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule.”

3.Therefore, I cannot grant any ex parte committal order before leave has been granted to the 5th plaintiff to apply for the same.  Since this application is contrary to the said rule, it should be dismissed.

4.I now deal with the alternative prayer for leave to commence committal proceedings.  This alternative application is not without problem.  The application is against four persons who are residents of the mainland.  They are probably four of the very many protestors who had staged protests at the various office premises of the plaintiffs.

5.The 5th plaintiff operates a multi-level marketing scheme in the mainland.  It entered into agreements with distributors selling them various kinds of health products.  These distributors in turn entered into agreements with sub-distributors sub-selling the goods to them. The distributors likewise entered into agreements with sub-sub-distributors and so on.

6.Dispute has arisen over the goods.  The distributors at various levels seek repayment and compensation from the plaintiff.  Many of them have come to Hong Kong to stage protests at the office premises of the plaintiffs.  The plaintiffs are companies associated with one another and are in the same group of companies. 

7.As a result of the protests, the plaintiff obtained an injunction order from Poon J on 2 November 2013.  The order was continued by Deputy High Court Judge Le Pichon on 8 November 2013 and further continued and varied by me on 11 December 2013. 

8.The terms of the order, as varied by me, enjoined the protestors, who are all unnamed, from trespassing or staying or otherwise entering in or upon the plaintiffs’ properties or molesting, interfering with or disturbing the plaintiffs, their members, their employees or servants or otherwise causing nuisance, annoyance, inconvenience or disturbance to the plaintiffs, their members, employees or servants, or from damaging the properties of the plaintiffs or damaging, dismantling, pulling down, demolishing or removing their chattels or things from their properties.

9.In making this application for leave, the 5th plaintiff relied on an affirmation of service of one Liu Chun-pong.  Liu has not disclosed his occupation or description or his relationship with the 5th plaintiff as required by Order 41 rule 1(4) of the Rules of High Court.  His stated address is not that of the 5th plaintiff’s solicitors but the office of one of the plaintiffs.  This affirmation, by reason of its non-compliance with Order 41 rule 1(4), is irregular.  Apart from this irregularity there are other problems.

10.I have mentioned above that the service of the injunction order was effected by Liu who has made an affirmation of service. In his affirmation, Liu said that he had served the injunction order made by me dated 11 December 2013 and a Chinese translation of my order.  The reason for serving the order with a Chinese translation is obviously because of the 5th plaintiff’s understanding that the respondents do not understand the order which is in English.  However, the translation of my order is in fact not what it purported to be as it is said to be a translation of an order by Madam Justice Barnes, but there is simply no such order.

11.The application is also supported by the fourth affirmation of one Cheung Siu Ha, Celinena, a senior manager, finance, of the 5th plaintiff.  She complained that various flagrant breaches of the injunction order had been committed on 7 January 2014 by the 1st to 4th respondents “by themselves and/or through their agents”.  This formula has been repeatedly used whenever breaches of the alleged breaches of the injunction are mentioned.  Hence, Ms Cheung is not firmly saying that the respondents had personally committed the alleged breaches in question.

12.Regarding the agency, there was no identification by Ms Cheung or any other affirmant who has made an affirmation in support of this application as to who were the agents and how were they appointed by the respondents as the respondents’ agents. 

13.There are some photos produced by Ms Cheung and Mr Liu.  They show a large number of people queuing up in an orderly manner on the pavement of a street outside the 5th plaintiff’s premises.  There are a few photos showing some persons holding up placards or posters.  But there did not appear to be any disorderly conduct.  There are also a few photos showing a few persons carrying a red banner, but still no indication of any disorderly conduct.  There are also a few photos showing some police officers standing by and watching the people in the queue.  These officers appear to be relaxed.

14.Cheung also said in paragraph 18 of her affirmation filed on 9 January 2014 that she saw (instead of heard) the 1st to 4th respondents standing nearby and giving instructions to some unknown protestors/trespassers.  She therefore verily believed that these unknown protestors/trespassers were working under the instructions of the 1st to 4th respondents.  But she did not say what she had heard and she referred to these “agents” as unknown protestors/trespassers.  I find that her evidence cannot show any principal/agent relationship between the 1st to 4th respondents on the one hand and any other person on the other or that the 1st to 4th respondents had given any instructions to the persons unknown.

15.Cheung also referred in paragraph 21 of her affirmation to the continuation of acts by the 1st to 4th respondents.  I understand her to mean that the acts as continued were by the 1st to 4th respondents “themselves and/or through their agents” who were these unknown protestors/trespassers. 

16.Liu also produced some photos in LCP-3.  They show people standing on a public pavement and in one photo in an unknown place.  He gave no indication that the 1st to 4th respondents were trespassing the 5th plaintiff’s properties at Yiu King Building, one of the office premises of the plaintiffs.

17.Ms Cheung also made a fifth affirmation on 9 January purportedly providing further support to the application.  She said in paragraph 11(a) that there were trespass and other molesting and harassing acts committed by the 1st to 4th respondents “by themselves and/or through their agents” at the 5th plaintiff’s Yee Wo Street office.  There is therefore the same problem of whether the acts in question were committed by the four respondents personally or by their agents and, if by their agents, how was the agency constituted.

18.Ms Cheung also produced some photos in CLC-16 in support of her words.  These photos only show some protestors protesting inside certain office premises.  There were also police officers at the premises. There are also some photos showing the premises in a chaotic condition but without the presence of any protestors or the police or any other person.  The chaotic condition could well be the result of the acts and conduct of the protestors, but there is nothing to show that the 1st to 4th respondents were responsible for the protestors’ acts and conduct.  There is also nothing to show that the very many protestors numbering up to 100 at times were the agents of the 1st to 4th respondents.

19.The 5th plaintiff, by saying that all protestors were the agents of the 1st to 4th respondents, is trying to make the 1st to 4th respondents responsible for all the acts of all the protestors.  That is an abuse of the application for leave.  It is a serious abuse as the 5th plaintiff is seeking to rely on the conduct of all protestors so as to have the 1st to 4th respondents imprisoned.

20.This application is fraught with problems and irregularities.  I therefore dismiss it.

Mr Kenneth C L Chan and Mr Billy N P Ma, instructed by Wong & Tang, for the 5th plaintiff