Tiong King Sing v. Sam Boon Peng Yee and Another
Read the full judgment text of HCA 1517/2011 on BabelCite. This High Court CFI judgment was delivered on 21 January 2015.
1. There are four summonses before the court: three issued under HCA 1517/2011 and one under HCMP 1404/2014.
Cites 9 cases
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HCA 1517/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1517 OF 2011 ____________ BETWEEN
____________ AND HCMP 1404/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 1404 OF 2014 ____________
____________ BETWEEN
____________
________________ D E C I S I O N ________________ Introduction 1.There are four summonses before the court: three issued under HCA 1517/2011 and one under HCMP 1404/2014. 2.On 13 May 2014, the defendants in HCA 1517/2011, made an ex parte application for leave to issue committal proceedings against the plaintiff by filing a statement (the “Statement”) and a supporting affirmation (“Cheng’s 12th Affirmation”) pursuant to Order 52 rule 2 of the Rules of the High Court. On 10 June 2014, pursuant to the ex parte leave granted by this court, the defendants issued an originating summons under HCMP 1404/2014 applying for an order of committal against the plaintiff (the “Contempt Summons”). For easy reading, the plaintiff in HCA 1517/2011 who is the defendant in HCMP 1404/2014 shall be referred to as the “Plaintiff”; while the defendants in HCA 1517/2011 who are the plaintiffs in HCMP 1404/2014 shall be referred to as the “Defendants”, or the “1st Defendant”, or the “2nd Defendant” as appropriate. 3.In the first summons dated 30 July 2014 under HCA 1517/2011, the Plaintiff seeks to strike out Cheng’s 12 Affirmation filed on behalf of the Defendants (the “HCA Summons”). In the second summons dated 1 September 2014, the Defendants seek leave to adduce expert evidence. In the third summons dated 1 December 2014 under HCA 1517/2011, the Plaintiff seeks an unless order requesting provision of certain documents by the Defendants. In the fourth summons dated 30 July 2014 under HCMP 1404/2014, the Plaintiff applies to dismiss the Defendants’ Committal Summons (the “HCMP Summons”). The HCA Summons and the HCMP Summons were ordered to be heard together. 4.The second and third summonses have been disposed of at the hearing. As the conduct of the HCMP Summons and its outcome depend largely on my decision on the HCA Summons, counsel sensibly agree that the hearing of the HCMP Summons be adjourned and be resolved among the parties, if possible, after my decision in the HCA Summons has been delivered. Accordingly, the HCMP Summons is adjourned sine die with liberty to restore. The Plaintiff’s application under the HCA Summons 5.In the HCA Summons, the Plaintiff seeks:
6.The Plaintiff’s application under the HCA Summons is based on the following grounds:
The background 7.The Plaintiff sold Wijaya International Investment Limited, later renamed as “W International Investment Group Limited” (“Company”) to the Defendants. That Company is the holding company of Chongqing Wijaya Realty Limited (“Chongqing Wijaya”) which owns a building project known as the Ba Nan Project. The Plaintiff then complained of fraud and that he had not been paid the full purchase price. In 2011, he commenced this action against the Defendants and applied for a Mareva injunction to restrain the Defendants’ disposition of certain properties. On 22 January 2012, upon the parties’ cross-undertakings, Louis Chan J dismissed the Plaintiff’s application for Mareva injunction. 8.The Defendants undertook: (1) to maintain a deposit of RMB45 million at a bank in Chongqing as agreed by the parties; (2) to report disposal of properties within the Ba Nan Project; (3) not to dispose of the shares of W International Investment Group Limited and the shares of Chongqing Wijaya; and (4) to allow the Plaintiff inspection of the books of Chongqing Wijaya. 9.The Plaintiff undertook to refrain whether by himself his servants agents or otherwise howsoever from causing any harassment to the Defendants or Chongqing Wijaya and/or any interference and disruption to the Defendants’ carrying on with the development of the Ba Nan Project. 10.On the morning of 4 May 2014, the Plaintiff and a group of men (the “Plaintiff’s men”) entered and occupied the office of Chongqing Wijaya and allegedly harassed the 1st Defendant and his staff. The Plaintiff’s men stayed overnight in the office. On the afternoon of that day, two males caused disturbance in the showroom inside the site of the Ba Nan Project. The 1st Defendant telephoned his solicitor, Mr Cheng of Messrs CL Chow & Macksion Chan (“CLCMC”), for help. 11.On the following day, Cheng went to Chongqing to take instructions from the 1st Defendant and interviewed nine other witnesses of the Defendants. At the same time, CLCMC wrote to W&G to complain about the incident on 4 May 2014 and demanded the Plaintiff to stop the harassment. 12.On 6 May 2014, some men distributed materials in Chongqing city containing a picture of the 1st Defendant and accusation that he was an international swindler. 13.On 7 May 2014, upon his return from Chongqing, Cheng wrote to W&G demanding an explanation for the incident. 14.On 13 May 2014, CLCMC filed Cheng’s 12th Affirmation in support of the Statement seeking leave to issue an originating summons for an Order that the Plaintiff be committed to prison for contempt of court in respect of his wilful breach of his undertaking pursuant to the order of Louis Chan J. 15.On 16 May 2014, W&G replied that the Plaintiff was on business trip and they were not able to take full instructions from him. On the basis of brief instructions, they denied on behalf of the Plaintiff that he had ever breached his undertaking. They admitted that the Plaintiff was in Chongqing on 4 May 2014 when he met several of his co-investors in the Ba Nan Project. He informed the co-investors that he had not been paid the full purchase price of the Ba Nan Project by the 1st Defendant. As result of repeated requests and insistence of the co‑investors, he was obliged to accompany them to the office of Chongqing Wijaya to demand the Defendants to pay up the full purchase price or to provide the co‑investors with the accounts relating to the Ba Nan Project. The 1st Defendant then called several gangsters to remove the co-investors from the office. The Plaintiff left the office of Chongqing Wijaya and flew back to Kuala Lumpur on the same day. 16.On 3 June 2014, after taking full instructions, W&G further wrote to CLCMC. They confirmed that the Plaintiff denied having caused any harassment to the Defendants. In essence, they repeated what was said in their First Letter, but provided more particulars. They said that the Plaintiff was urged by one of his co‑investors, Zhang, to present himself at the office of Chongqing Wijaya. Upon arrival, two or three other co‑investors escorted him into the office. He was asked by the co‑investors to confirm in the presence of the 1st Defendant that the 1st Defendant had not paid him the purchase price in full or afforded him full and timely access to the accounts of Chongqing Wijaya. He did as he was told. But the 1st Defendant refused to confirm what he said. Later, two teams of police officers arrived, but they left without taking any action. Then the Plaintiff left. Later in the afternoon, he was summoned by his co‑investors to go back to the office of Chongqing Wijaya. There, his co‑investors asked him to remain in the office until the 1st Defendant verified what he had said. He was also required by the fifth team of policemen who arrived to stay there in the course of their inquiry of the 1st Defendant’s complaint. His co‑investors insisted on staying in the office because the 1st Defendant had asked his staff to delete all the accounting records from the computer in his office and to remove documents. The Plaintiff denied that he or any of his servants or agents made any allegations against the 1st Defendant or Chongqing Wijaya at all. A fax copy of this letter arrived at the office of CLCMC at 6:30 pm. 17.On the following day, 4 June 2014, I granted leave to the Defendants to issue the Contempt Summons. A copy of my order was faxed to CLCMC at 11:00 am. CLCMC then informed W&G of the ex parte leave granted. 18.On 5 June 2014, W&G wrote to CLCMC demanding them to immediately withdraw the contempt proceedings against the Plaintiff for their failing to disclose the contents of their First Letter. CLCMC refused. 19.On 30 June 2014, W&G wrote to CLCMC again requesting them to set aside the ex parte leave granted and to discontinue the Contempt Summons. They gave further explanations for the Plaintiff’s presence at the office of Chongqing Wijaya. In gist, his explanation is that he flew to Macau to attend a meeting of the World Zhang Clan Association of which he is the president. There, he met Zhang who is a member of the association and a co‑investor in the Ba Nan Project. Zhang told him that the co‑investors were frustrated about the delay in this litigation, were sceptical of the Plaintiff and were anxious about the possibility of losing their investment. Zhang urged him to go to Chongqing with the co‑investors to verify that he had not been paid the full purchase price. Zhang also accused him of having something to hide from them. He was reluctant to go and told Zhang about his undertaking to the court. Eventually, he agreed to go on Zhang’s insistence and assurance that the co‑investors would not cause any trouble. At the office of Chongqing Wijaya, he told the 1st Defendant that the co‑investors wanted to chop off the Plaintiff’s neck because he had not been able to return their investments or allow them to reap any profit. 20.The 1st Defendant had been prohibited by the Chongqing Public Security Bureau from leaving Chongqing since 2012 to facilitate their investigation in relation to the Plaintiff’s complaints of fraud. He was placed under house arrest on 16 April 2013. He was released in about June 2014. That explains why he was unable to file any affirmation in reply to the Statement. On 10 September 2014, he filed his 3rd and 4th Affirmations in support of the present application. Striking out or excluding parts of Cheng’s 12th Affirmation 21.Mr Shieh SC attacks Cheng’s 12th Affirmation on two fronts. First, he argues that it was inappropriate for Cheng to make an affirmation on behalf of the Defendants on matters which are highly controversial. This is because Cheng did not have personal knowledge of the matters in dispute and his affirmation has the effect of shielding the Defendant behind his solicitors. The general rule is that solicitors should only give evidence on behalf of their clients as a matter of exception which has to be justified. It would be a fault for a solicitor to make affirmations on behalf of his client where the contents are highly controversial. Where the client is abroad and his affidavit could not be perfected in time, a draft of the same could be exhibited to the solicitor’s affirmation to be followed by filing of the client’s sworn copy[1]. The contents of Cheng’s 12th Affirmation are highly controversial. However, at the time when the ex parte application for leave was made, the 1st Defendant, who is the controlling mind of the 2nd Defendant, was under house arrest and could not come to Hong Kong to make an affirmation or do so in Chongqing. Cheng had been to Chongqing to take instructions from the Defendants and had interviewed nine other witnesses. For Cheng to make an affirmation to verify the Statement was the only way the application for leave to issue the Contempt Summons could be made. As the 1st Defendant was placed under house arrest at the material time, Mr Shieh SC does not take issue with the 1st Defendant’s failure to file an affirmation in support of the Statement. In any event, the 1st Defendant has made affirmations in September 2014 affirming the contents of Cheng’s 12th affirmation. This is a case in which filing of an affirmation by solicitor is justified. 22.Second, Mr Shieh SC relies on the principle that an allegation of civil contempt must be proved strictly to the criminal standard, ie the applicant must prove beyond reasonable doubt both the act claimed to constitute the contempt and the alleged contemnor’s requisite state of mind[2]. He also relies on Order 41 rule 5(2) which requires an affidavit sworn for the purpose of being used in interlocutory proceedings containing statements of information or belief to state the sources and grounds of that information or belief. This requirement has to be strictly complied with where objection is likely to be taken, and especially where it is an objection of substance and not a mere technical and frivolous one[3]. 23.Against this principle and requirement under Order 41 rule 5(2), Mr Shieh SC criticises the vague and general nature of Cheng’s 12th Affirmation. A wide range of allegations are contained in the affirmation in relation to matters which Cheng could not have personal knowledge of. He relied on his interviews of the 1st Defendant and nine of his employees. The contents of the affirmation are all hearsay. Though hearsay evidence is admissible, Cheng failed to specify the sources of information for each allegation individually. Cheng did not say in Cheng’s 12th Affirmation which of the ten interviewees saw what each of the Plaintiff and his men did in harassing the Defendants. Mr Shieh SC argues that even if the interviewees were either at the scene “and/or” witnessed the relevant incidents, it does not necessarily mean that all matters they allegedly conveyed to Cheng were derived from their personal knowledge. For example, one interviewee could have told Cheng simply what another interviewee had told him. 24.Mr Sheih SC further argues that albeit admissible in contempt proceedings, the court retains the discretion to exclude hearsay evidence on affidavit under Order 38 rule 2. He refers to the following observation of Ma J, as he then was, in Citybase Property Management Ltd v Kam Kyun Tak & Ors (No.1)[4]:
Based on the above observation, Mr Shieh SC submits that upon a careful consideration of the quality of the evidence, Cheng’s 12th Affirmation should be excluded under Order 38 rule 2(3). 25.Mr Coleman SC has no dispute with these trite principles of law which are hardly controversial, but argues that they are not applicable to an application for ex parte leave to issue committal proceedings and setting aside of the same. 26.I think Mr Coleman SC is plainly correct. Order 52 rule 2(1) to 2(4) provide as follows:
27.Under these rules, there are two stages in a committal proceeding. First, an applicant applies for leave under Order 52 rule 2(1) to make an application for an order of committal. Under rule 2(2), such an application must be made ex parte to a judge and must be supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought and by an affidavit to be filed before the application is made, verifying the facts relied on. The judge may determine the application for leave without a hearing. A hearing is rarely required. As in the present case, leave was granted without a hearing. This ex parte stage is a filtering process. The leave requirement filters out oppressive applications for committal or those which have “some suspicion of oppression about them” or those which obviously have no chance of success. If leave is granted, the applicant proceeds to the second stage. He may make an inter partes application for an order of committal by taking out an originating summons under rule 3. 28.The statement under the ex parte stage is to be treated in a similar manner as an indictment in criminal proceedings setting out the particulars of the offence: see Grand Union Insurance Co Ltd v Clyde & Co[5]. The purpose of the supporting affidavit is to verify those facts relied on in the statement. It needs not contain the evidence in support of the order for committal, though it usually does. How the facts relied on in the statement are to be proved and whether the evidence thereof is admissible or sufficient, are issues to be decided at the substantive hearing at the inter partes stage: see Fabrique Ebel SA v MBO Far East[6] and Anthony Eric Ryan Hotung v Ho Yuen Ki[7]. The requirements of the supporting affidavit are succinctly stated in Hong Kong Civil Procedure 2015 as follows[8]:
29.At this stage of the proceeding or for the purpose of setting aside the ex parte leave granted, the court is not concerned with questions of admissibility of evidence, or proof of the charge, or viability of the defences. As was held by the Court of Appeal in Secretary for Justice v Choy Bing Wing[9], those matters can and should only be dealt with at the substantive hearing. I therefore agree with Mr Coleman SC that the principles relied on by Mr Shieh SC are not applicable to an ex parte application for leave or for setting aside of the leave granted. They may be applicable at the substantive hearing of the application for an order of committal. 30.Given the purpose of the supporting affirmation and the nature of the proceeding at this stage, all the objections raised by Mr Shieh SC about the defects of Cheng’s 12th Affirmation collapse. Cheng interviewed ten potential witnesses, including the 1st Defendant. They were at the scene and/or witnessed the incidents. Cheng has sufficiently verified the facts as particularized in the Statement. The 1st Defendant has now filed his 3rd Affirmation confirming that the account of the incidents described in Cheng’s 12th Affirmation is the same as that which he saw or was reported to him by his staff at the material time of the incidents. There was no concealment by Cheng and the 1st Defendant of their reliance on hearsay evidence in their affirmations. The court can assess the veracity of the hearsay evidence at the substantive hearing. It is also open to the 1st Defendant to make good his case by filing evidence from any of the other nine interviewees whose particulars and whereabouts are known to him. This is not a case in which the court entertains any suspicion of oppression or can say with absolute certainty that it has no chance of success. There is no reason to strike out or expunge any part of Cheng’s 12th Affirmation under Order 41 rule 5(2) because of his failure to state the sources and grounds of his information or belief, or to exercise my discretion to exclude it under Order 38 rule 2. Whether the Statement disclosed reasonable cause of action 31.Under this ground, the Plaintiff attacks the Statement as disclosing no reasonable cause of action. This attack is premised on two principles. First, since the liberty of the alleged contemnor is in issue, the notice which is given to the alleged contemnor must contain all the particulars which the court ordinarily demands before depriving a person of his liberty: see Churchman v Joint Shop Stewards’ Committee of the Workers of the Port of London[10]. There is no dispute about this principle. 32.Second, as the Defendants’ case is premised on the wrongs committed by agents, servants or others (ie “otherwise howsoever” under the Plaintiff’s undertaking) for whom the Plaintiff is responsible, the Defendants have to establish some relationship, such as principal and agent, between the Plaintiff and the wrongdoers; and this relationship can only be established by mutual consent, express or implied: see Garnac Grain Co Inc v Faure & Fairclough Ltd[11]. Hence, Mr Shieh SC argues that the Plaintiff must plead facts which establish such relationship or consent. He quotes the following dicta from Stockwell v Victoria [12]:
33.On the strength of these dicta, Mr Shieh SC argues that the Statement is defective in the following respects. On the Defendants’ case, the Plaintiff was only involved or present in the first out of the thirteen acts of harassment pleaded in the Statement. The other occasions were allegedly attended by the Plaintiff’s men or just two males. The Defendants have not pleaded that any of the “Plaintiff’s men” or “males” mentioned in the Statement was the Plaintiff’s agent, servants, or other persons for whom the Plaintiff was responsible or named them. Mr Shieh SC submits that even allowing for the fact that the Defendants cannot be expected to know their names if the 1st Defendant and the other nine interviewees had not met them before, it would be far‑fetched to suggest that simply by his presence with those “men” or “males” on the occasion identified in the Statement, those “men” or “males” must automatically become the Plaintiff’s agents, servants or other persons for whom the Plaintiff was responsible for the purpose of carrying out the acts now complained of. 34.With respect, this objection is rather artificial. What have to be pleaded in the Statement are facts and not evidence. In the Statement, the Defendants have pleaded the Plaintiff’s presence and the acts committed by the “Plaintiff’s men” who came with him and was aware that those “men” stayed overnight. They have pleaded the “two males” who pursued a similar course of conduct in the showroom on 4 and 5 May 2014 and the handing out of defamatory materials in Chongqing City from 6 May 2014. Given the proximity in time and location of the incidents in the office of Chongqing Wijaya and the showroom, the irresistible inference is that those “men” and the “males” were acting in concert in pursuing a joint enterprise and under the instructions of the same group, of which the Plaintiff formed part. Their agreement or consent in pursuant to this common course of conduct could be readily inferred. Whether those “men” or “males” are co‑investors as the Plaintiff alleges, relatives and friends of the Plaintiff or people brought along by them fall within the wordings of “otherwise howsoever” in the undertaking. For the purpose of this filtering process, at least, a reasonable cause of action has been disclosed by the Statement. Whether there was breach of duty of full and frank disclosure 35.The strongest ground, according to the Plaintiff, is material non-disclosure. It is well established principle under Order 32 rule 6 that an ex parte order may be set aside if an applicant failed to make full and frank disclosure of all material facts. Facts are material and should be disclosed if they are relevant to the weighing process which the court has to make in deciding whether to grant the order: see paragraph 52/2/4 of Hong Kong Civil Procedure 2015. A party’s duty of full and frank disclosure continues as long as the proceedings remain on an ex parte basis: see paragraph 32/6/16 of Hong Kong Civil Procedure 2014. The duty applies also to the situation where material information only comes to light after leave has been granted, but before the hearing of the substantive application for committal: see RACP Pharmaceutical Holdings Ltd v Li Xiaobo [13]. The Plaintiff relies on the First Letter dated 16 May 2014 and the Second Letter dated 3 June 2014 as material facts which should have been disclosed as relevant to the court’s weighing process in deciding whether to grant the ex parte leave. The principles quoted above are trite principles. The issues are whether either of the two letters contained materials relevant to the court’s weighing process. 36.In the First Letter, W&G admitted on behalf of the Plaintiff that he accompanied his co-investors, albeit under some moral obligation or coercion, to the office of Chongqing Wijaya to demand the 1st Defendant to pay up the full purchase price or to provide the co‑investors with the accounts relating to the Ba Nan project, but denied he had ever breached his undertaking. Though denying any breach of the undertaking and asserting that he left Chongqing later that afternoon, this letter corroborated the Defendants’ case that the Plaintiff was with the Plaintiff’s men in the office of Chongqing Wijaya. In summary, the First Letter offered a brief explanation of the Plaintiff’s presence at the office of Chongqing Wijaya. 37.In respect of the Second Letter, there was an argument by W&G that the Second Letter only arrived at their office after office hours at 6:30 pm on 3 June 2014; that on the following day the handling solicitor was attending a case management conference scheduled for 10:30 am; and my order granting leave arrived at the office at 11:00 am by fax. Hence, by the time the handling solicitor had notice of the Second Letter, leave had been granted. The purported explanation was not made on oath. There is no explanation as to why the handling solicitor could not have attended to that letter between 9:00 am and 10:30 am or could not have made disclosure to the court before having the order sealed. In any event, this attempt to water down the material non-disclosure must fail as the obligation of full and frank disclosure survives the order grant leave: see RACP Pharmaceutical Holdings Ltd v Li Xiaobo [14] and China North Industries Investment Ltd v Ronald Chum[15]. Mr Shieh SC argues that despite the issue of material non-disclosure was raised in the Second Letter, W&G still did not see fit to disclose the Second Letter to the court. He submits that such conduct must be taken as intentional and contumelious. 38.On the other hand, Mr Coleman SC submits that the Second Letter simply contained denials and representations by the Plaintiff’s solicitors; they are not relevant materials, for otherwise the courts would be bombarded by being copied on all solicitors’ correspondences and asked to constantly review its decision after every exchange, every time an ex parte order was granted until inter partes hearing. 39.I would not treat a solicitor’s representation on behalf of his client in a serious matter such as this so lightly. Here, in the First Letter and Second Letter, CLCMC tendered what purported to be an innocent explanation on behalf of his client for his presence during the incident, in respect of which ex parte leave to issue committal proceedings was granted and protested about material non-disclosure. Whether the two letters should be taken seriously depends on what is the substance in the letters, particularly in the Second Letter. Were the materials disclosed relevant to the court’s weighing process? 40.In the Second Letter, W&G repeated what was said in the First Letter and provided more particulars. The Plaintiff denied he was in breach of his undertaking and denied that the co‑investors were his servants or agents. He was urged by one of his co‑investors, Zhang, to present himself at the office of Chongqing Wijaya. He explained how he was being accompanied by two or three other co-investors to confront the 1st Defendant in the office of Chongqing Wijaya in the morning and again later in the afternoon. He impliedly confirmed that the “Plaintiff’s men” were his co‑investors who urged him to confront the 1st Defendant. Again, this corroborated the Defendants’ case insofar as the Plaintiff’s presence with the “Plaintiff’s men” is concerned. He added that he was required by the fifth team of policemen who arrived to stay there in the course of their inquiry of the 1st Defendant’s complaint of harassment. This allegation does not damage the Defendants’ case. The Plaintiff further asserted that his co‑investors insisted on staying in the office because the 1st Defendant had asked his staff to delete all the accounting records from the computer in the office and to remove documents. Though this assertion explains the reason why the “Plaintiff’s men” brought mattresses to stay in the office of Chongqing Wijaya, it is at least consistent with the Plaintiff’s case insofar as the “Plaintiff’s men” stayed overnight in the office is concerned. What is left in dispute is what the Plaintiff’s men did in the office and whether what they did amounted to harassment. Again, the Second Letter offered a fuller explanation of the Plaintiff’s presence at the scene. 41.The function of the court at the ex parte stage is to filter out obviously unfounded or oppressive applications for committal or those which have some suspicion of oppression about them. It is not concerned with finding whether committal proceedings are appropriate, which is a matter to be dealt with at the substantive hearing. It is not concerned with admissibility of evidence or whether the applicant can successfully prove his allegations against the alleged contemnor nor is the court concerned with the possible defence of the alleged contemnor or whether such defence will prevail: see Secretary for Justice and Choy Bing Wing[16]. What the court has to do in this weighing exercise is to satisfy itself that the applicant has shown a prima facie case and that the application was not oppressive or has any suspicion of oppression. That is what this weighing exercise is all about. It does not require the court to weigh the relative strength of the parties’ case and make finding of fact and credibility of witnesses. Indeed, the court should not engage itself in a mini trial on affidavit evidence. 42.There is not much the First and Second Letters could have added to Cheng’s 12th Affirmation or the Statement, except an explanation of the Plaintiff’s involuntary presence at the office of Chongqing Wijaya. Whether the explanation is to be believed boils down to finding of fact and credibility to be determined at the substantive hearing of the application for committal. These are not matters to be determined at the ex parte stage. Furthermore, the explanation does not go that far as to destroy the fundamental basis of the Defendants’ case such that the ex parte application may be filtered out as having no chance of success. The explanation has nothing to add to the weighing process at the ex parte stage. 43.I was referred to the case of RACP Pharmaceutical Holdings Ltd v Li Xiaobo[17] in which the ex parte leave for issue of a notice of motion for committal for alleged breach of a Mareva order was set aside on the ground of material non‑disclosure. The information which was not disclosed was the applicant’s knowledge that his witness was not reliable and that the contemnor had purged the contempt which he might have been found guilty of and which effectively removed all risks of dissipation of assets prior to judgment under the Mareva order. That case is clearly distinguishable from the facts of the present case. The applicant should have alerted the ex parte judge of the inherent risk in his own case and that the contempt had been purged which rendered the proceeding oppressive. 44.On the evidence before me, the Plaintiff has amply demonstrated a prima facie case. There is nothing to suggest oppression in the taking out of the application for leave. That an alleged contemnor has an explanation is something to be tested at the hearing of the substantive application. Taking out an application for ex parte leave, even with knowledge of such an explanation, which is disputed, does not amount to oppression. Not even Mr Shieh SC has suggested otherwise. In the circumstances, the information disclosed in the First Letter and Second Letter are not material or not relevant for the court’s consideration at the ex parte stage. Conclusion 45.In conclusion, I find that the ex parte leave was rightly granted in the first place. The First Letter and Second Letter issued by the Plaintiff’s solicitors after the application was filed do not undermine the Defendants’ case or render it obviously unfounded or oppressive. Accordingly, the Plaintiff’s HCA Summons dated 30 July 2014 to strike out or expunge parts of Cheng’s 12th Affirmation and to set-aside the ex parte leave granted on 4 June 2014 is dismissed with costs with certificate for two counsel. 46.The Plaintiff’s HCMP Summons dated 30 July 2014 was adjourned sine die with liberty to restore.
Mr Paul Shieh, SC and Mr Harry Liu, instructed by Wilkinson & Grist, for the plaintiff in HCA 1517/2011 and the defendant in HCMP 1404/2014 Mr Russell Coleman SC and Ms Elizabeth Yang, instructed by CL Chow & Macksion Chan, for the defendants in HCA 1517/2011 and the plaintiffs in HCMP 1404/2014 [1] UES International (HK) Ltd v Maritima Maruba SA, HCA 632/2011 (unreported, 19 November 2013) at §11-20, per Anthony Chan J; Beijing Tong Gang Da Sheng Trade Co Ltd v Allen & Overy [2014] 2 HKLRD 86 at §§17-18, per DHCJ Le Pichon. [2] Kao, Lee & Yip v Donald Koo Hoi Yan (2009) 12 HKCFAR 830 at §30, per Sir Gerard Brennan NPJ. [3] Barclays Bank plc v Piper, The Times, 31 May 1995, per Roch LJ. [4] [2003] 2 HKC 98 at §17. [5] [1988] HKC 464 at 469, per Mayo J, as he then was [6] [1985] 1 HKC 166. [7] Unreported, CACV 178/2006, 25 September 2009, at §§13, 15 and 16. [8] At Note 52/2/7. [9] Unreported, CACV 11 of 2004, December 3, 2004, §§63-79 [10] [1972] ICR 222 at 229 per Lord Denning MR. [11] [1968] AC 1130 at 1137, per Lord Pearson. [12] [2001] VSC 497 at §§20-31 [13] (Unreported), HCA 490/2007, 14 April 2008, per DHCJ Gill. [14] (Unreported), HCA 490/2007, 14 April 2008, per DHCJ Gill. [15] [2010] 5 HKLRD 1 at 37; §109, per Stock JA, as he then was. [16] Supra [17] (Unreported), HCA 490/2007, 14 April 2008, per DHCJ Gill. |
Cases cited in this judgment
Further hearings and rulings under HCA 1517/2011