Komal Patel and Others v. Chris Au and Others

HCA 183/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 183 OF 2014

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BETWEEN

(BY ORIGINAL ACTION)

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AND BETWEEN

(BY COUNTERCLAIM)

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DECISION ON THE REFERRAL TO THE ATTORNEY GENERAL OF SINGAPORE

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Introduction

1.In my judgment of 11 July 2014, I stated that I was mindful to refer to the Attorney General of Singapore the matter concerning the 1^st defendant’s oral testimony before the High Court of Singapore as to his interest and involvement in the 3^rd defendant and the Kudeta business.  I had been provided with a copy of the transcript of the proceedings in Singapore and the 1^st defendant’s evidence was in complete contrast to what he stated in his sworn affirmations filed in these proceedings. I addressed this matter in my judgment of 1 April 2014 but received no response from the 1^st defendant about it. I invited submissions from the 1^st defendant on my referral of the matter to the Attorney General of Singapore.  See TCWF v LKKS (No 1) [2014] 1 HKLRD 896 at para 125.

Submission not to refer

2.I am urged by Mr Charles Sussex, SC, and Ms Queenie Lau, counsel for the 1^st defendant, not to make the referral for three reasons. First, the court has not yet heard oral evidence from the parties, and has not given a final judgment in these proceedings. Secondly, the Court of Appeal of Singapore heard an appeal on 26 May 2014, which reserved its decision, in relation to proceedings where allegations were made against the 1^st defendant and the 3^rd plaintiff that they gave false evidence at trial, so there is no necessity to make the referral. Thirdly, there is no finding that the 1^st defendant has committed an offence in Hong Kong and that alleged offences in one jurisdiction are not the primary concern of courts of another jurisdiction.

Applicable principles

3.There are a number of fundamental principles that need to be stated before I address the points raised by counsel for the 1^st defendant. A judge may make a complaint or referral to the relevant authorities of alleged wrongdoing arising from or connected to proceedings before the court. A judge has the same right and public duty to do so as any member of the public. In cases where it is alleged false evidence has been presented in relation to the proceedings, the public interest in upholding the integrity of the administration of justice requires referral to the relevant authorities, and if necessary and appropriate, release of relevant information or material in the possession of the court. See Secretary for Justice v FTCW and Ors [2014] HKCU 66 at para 115; Re NDT (BVI) Trading Ltd (No 2) [2009] 5 HKLRD 615 at paras 5 to 8.

4.There is an obligation on courts of different jurisdictions to cooperate with each other to ensure that the judicial processes are not defeated and to promote the universality of the rule of law.  This is underlain by a body of common law principles mainly founded on international comity and the enactment of legislative provisions that recognise and assist other jurisdictions under our civil and criminal justice systems.  Some of the legislative measures are illustrated by the provisions for interim relief of foreign proceedings and the enforcement of foreign judgments: sections 21M and 21N of the High Court Ordinance, Cap 4 and the Foreign Judgments (Reciprocal Enforcement) Ordinance, Cap 319 where Singapore is listed as a scheduled country; and the provisions for extradition of fugitives and mutual legal assistance: the Fugitive Offenders Ordinance, Cap 503 and the Mutual Legal Assistance in Criminal Matters Ordinance, Cap 525.  See also Part VIII and VIIIA of the Evidence Ordinance, Cap 8 the obtaining of evidence for and from foreign courts in civil and criminal proceedings. 

5.It was in Credit Suisse Fides Trust SA v Cuoghi [1998] QB 818 that Millet LJ (as he then was) pointedly remarked at 827:

“It is becoming widely accepted that comity between the courts of different countries requires mutual respect for the territorial integrity of each other’s jurisdiction, but that this should not inhibit a court in one jurisdiction from rendering whatever assistance it properly can to a court in another in respect of assets located or persons resident within the territory of the former.”

6.Lord Nicholls of Birkenhead in his dissenting judgment in Mercedes-Benz AG v Leiduck [1996] AC 284 echoed the sentiment that was the basis of future legislative provisions to facilitate greater cooperation between courts of different jurisdictions, where at 305B-C he said:

“The 1^st defendant’s argument comes to this: his assets are in Hong Kong, so the Monaco court cannot reach them; he is in Monaco, so the Hong Kong court cannot reach him. That cannot be right. That is not acceptable today. A person operating internationally cannot so easily defeat the judicial process. There is not a black hole into which a defendant can escape out of sight and become unreachable.”

7.Recently, the Hong Kong Court of Appeal in TCWF v LKKS (No 1) [2014] 1 HKLRD 896 considered the appropriateness of a court making a referral to the head of the prosecuting authority.  In that case, the trial judge in his judgment made findings of criminal behaviour according to the civil standard of proof and ordered that the judgment be referred to the Director of Public Prosecutions (DPP).  The appellant sought to set aside the order but the Court of Appeal refused to do so. The Court of Appeal concluded that the act of referral by the judge to the DPP was not appealable and explained that:

“ 119. The act of the judge in referring the matter to the DPP is in substance no different from the referral made by any ordinary citizen.

8.The Court of Appeal went on to explain further that :

“ 121. …there is no doubt that it was open to the judge to refer the matter to the DPP.

122. The long standing practice of the courts is that where an arguable case of serious misconduct is disclosed by evidence in a civil trial, the court will consider referring the matter to the prosecuting authority, as it is part of the court’s duty in upholding the rule of law (R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 WLR 2653 at para 92).  See also Summers v Fairclough Homes Ltd [2012] 1 WLR 2004 at para 60…”

9.Listed in the decision are numerous cases in which referral to the DPP was considered and made by courts of various levels in Hong Kong.

Discussion on submission

10.It is submitted by Mr Sussex that the court has not yet heard oral evidence from the parties, and has not given a final judgment in these proceedings.  He argued that the court had to determine the facts underlying the dispute, in particular the ownership of Kudeta BVI before it was in a position to assess the parties’ various different assertions as to ownership and consider whether any reference to the Attorney General of Singapore should be made.  The logic of this argument escapes me.  The 1^st defendant had given evidence on oath before a High Court judge of Singapore as to his interest in and ownership of the 3^rd defendant and the Kudeta business which was completely contrary to the case he had advanced in proceedings in Hong Kong and that he attested to in affirmations he filed.  To make matters worse, the 1^st defendant’s alter ego, the 2^nd defendant, commenced proceedings for injunctive relief in Singapore against several of the opposing parties in the Hong Kong proceedings claiming in evidence filed in the Singapore proceedings that she held a beneficial interest in the 3^rd defendant.  This was completely contrary to evidence she filed in the Hong Kong proceedings.

11.It is further submitted by Mr Sussex that in other proceedings before the High Court of Singapore which are now on appeal to the Court of Appeal of Singapore allegations of false evidence had been made against the 1^st defendant and the 3^rd plaintiff.  The Court of Appeal of Singapore may not be aware of matters that have come before this Court and accordingly I do not see that this prevents me from making a referral to the Attorney General of Singapore.

12.It is finally submitted by Mr Sussex that there is no finding that the 1^st defendant has committed an offence in Hong Kong.  There does not have to be a finding of criminal wrongdoing by a court to make a referral for “an arguable case of serious misconduct”.  It is sufficient that there is information or material that raises the court’s concern to the extent that the matter disclosed warrants referral to the relevant authorities for inquiry or investigation.  Just like the ordinary citizen, the courts in such circumstances have a public duty and responsibility to report to the relevant authorities any alleged or perceived wrongdoing.  There does not have to be a finding of an offence to report a matter.  To suggest that alleged offences in one jurisdiction are not the primary concern of courts of another jurisdiction seems to be a play on the word “primary”.  International comity rebukes this argument. Alleged offences wherever they occur are a concern to us all, and in particular to the courts that seek to uphold the rule of law and dispense justice. There is no reason why a judge who can report "an arguable case of serious wrongdoing" to the relevant authorities in this jurisdiction, cannot do so to the relevant authorities in another jurisdiction.

Conclusion

13.Litigants should be on notice that there are consequences when they say one thing before the courts in one jurisdiction and say something entirely different before the courts of another jurisdiction.

14.For the reasons I have given, I direct the Registrar of the High Court to provide to the Attorney General of Singapore copies of my judgments dated 1 April 2014 (paras 37 to 38) and 11 July 2014 (paras 50 and 117) together with copies of the 1^st defendant’s affirmations and the exhibits thereto.

Mr Charles Sussex SC and Ms Queenie Lau, instructed by Herbert Smith Freehills, for the defendants