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CACV 53/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 53 OF 2016
(ON APPEAL FROM DCMP NO 2850 OF 2015)
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BETWEEN
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NUMERIC CITY LIMITED |
Plaintiff
(Appellant) |
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and
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LAU CHI WING |
Defendant
(Respondent) |
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| Before: Hon Lam Ag CJHC, Hon Kwan JA, and Hon Poon JA in Court |
| Date of Hearings : 5 August 2016 |
| Date of Judgment: 5 August 2016 |
| Date of Reasons for Judgment: 9 September 2016 |
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REASONS FOR JUDGMENT
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Hon Poon JA (giving the Reasons for Judgment of the Court) :
A. INTRODUCTION
1. This is an appeal by the plaintiff against the order of Deputy District Judge D Ho dated 15 December 2015 dismissing its application for an order of committal against the defendant with costs summarily assessed at HK$23,000.00.[1]
2. On 5 August 2016, after hearing the parties, we dismissed the appeal with costs. We now hand down the reasons for our judgment.
B. Background
3. The application for committal arose out of DCCJ 1347/2013. There, a Madam Shi Ling Yee sued the plaintiff, the registered owner of the suit property (“the Property”) for possession on the ground of estoppel and constructive trust.
4. Earlier in another action DCCJ 3996/2011, the plaintiff’s predecessor in title, a Madam Chan Kam Fong sued the defendant as tenant of the Property for arrears of rent. The defendant filed a home-made defence, verified by a statement of truth, admitting to be a tenant of the Property but disputing the amount of rental as agreed by the parties (“the Defence”). However, in DCCJ 1347/2013, the defendant filed a witness statement, also verified by a statement of truth, for Madam Shi, retracting from the purported position that he took in the Defence (“the Witness Statement”). He now denied that he was a tenant of the Property. He explained that his earlier admission in the Defence that he was a tenant was made out of a sense of bitterness, hoping to deter Madam Chan from pursuing the matter any further. The payments that he made to Madam Chan in the past were not rental but gratuitous payments for Madam Chan’s support of her mother. He also gave oral evidence for Madam Shi at the trial before Deputy Judge WK Wong.
5. After trial, Deputy Judge Wong found that Madam Shi and the defendant (and another witness called by Madam Shi) to be untruthful witnesses. He rejected their evidence as incredible and unreliable. Significantly for present purposes, he set out the inconsistencies of the defendant’s evidence at [63] of his judgment dated 30 July 2015. In particular at [63(5)], he referred to the defendant’s evidence under cross-examination in respect of the Defence, noting in the end that the defendant said that what he alleged in Defence was not true. Further, the Judge found that the defendant was in fact a tenant of the Property since 2001. He dismissed Madam Shi’s claim and ordered her to deliver possession of the Property to the plaintiff.
6. Deputy Judge Wong went on to observe at [83] that the defendant might be criminally liable for making inconsistent statements verified by statements of truth and that if the plaintiff were to take action, it should be done under Order 41A, rule 9 of the Rules of the District Court (“RDC”).
C. The leave application
7. In October 2015, the plaintiff took out an ex parte application under Order 52, RDC for leave to commence committal proceedings against the defendant on the ground that he had made the Witness Statement, which was false. The application was supported by an affirmation of Chan Man Fai Joe, the sole director of the plaintiff dated 30 September 2015 (“Chan’s Affirmation”) and a statement dated 5 October 2015 (“the Statement”).
8. District Judge Levy granted leave on paper on 22 October 2015.
D. The hearing before Deputy Judge Ho
9. The plaintiff issued the originating summons for committal on 28 October 2015. The matter then came before Deputy Judge Ho on 15 December 2015. By then, the only evidence before the Judge was Chan’s Affirmation together with the exhibits. The defendant had elected not to give evidence. Mr Cheung, counsel for the plaintiff, asked the Judge to deal with the matter summarily. After hearing counsel’s submissions, the Judge dismissed the application with costs.
10. Deputy Judge Ho’s reasons for his decision were reduced into writing in his Ruling of the same date. Briefly, he took the view that Deputy Judge Wong arrived at his finding in DCCJ 1347/2013 that the defendant was a tenant of the Property on the civil standard of proof. He must look for “something else” before he could arrive at the same conclusion on the criminal standard of proof on the evidence before him. Although the defendant had made inconsistent statements, Deputy Judge Ho could not be satisfied that he was in fact making a false statement before him. So he ruled that the plaintiff had not discharged the burden of proving the defendant’s contempt beyond reasonable doubt.
E. Leave under Order 41A rule 9
E1. The statutory requirement
11. Order 41A, rule 9 of the RDC provides :
“ (1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
(2) Proceedings under this rule may be brought only-
(a) by the Secretary for Justice or a person aggrieved by the false statement; and
(b) with the leave of the Court.
(3) The Court shall not grant the leave under paragraph (2) unless it is satisfied that the punishment for contempt of court is proportionate and appropriate in relation to the false statement.
(4) Proceedings under this rule are subject to the law relating to contempt of court and this rule is without prejudice to such law.”
12. Although the procedure to apply for leave is contained in Order 52, RDC, it does not distract from the need to obtain the court’s prior leave under Order 41A, rule 9(2) to commence committal proceedings.
13. Some of the important factors which the court will consider in deciding whether to grant leave to bring contempt proceedings under Order 41A, rule 9 are summarized in Hong Kong Civil Procedure 2016, Vol 1 at §41A/9/1 at p 870 :
“ (i) A person who makes a statement verified by a statement of truth or false disclosure statement is only guilty of contempt if the statement is false and the person knew it to be so when he/she made it and;
(ii) it has to be in the public interest for contempt proceedings to be brought, and the relevant factors are that : (a) the case against the alleged contemnor must be a strong case; (b) the false statement must be significant in the proceedings; (c) whether the alleged contemnor understood the likely effect of the statement and the use to which it would be put, and; (d) the deterrent effect of contempt proceedings.
(iii) The Court must give reasons but care has to be taken to avoid prejudicing the outcome of the substantive proceedings.
(iv) Only limited weight should be attached to the likely penalty.
(v) A failure to warn the alleged contemnor at the earliest opportunity that he/she may have committed a contempt could be taken into account.
(vi) Delay in bringing proceedings for contempt is also a significant factor. It may be oppressive to grant leave if there is a significant period of delay in bringing proceedings for contempt (KJM Superbikes Ltd v. Hinton [2008] EWCA Civ 1280 and Barnes (t/a Pool Motors) v. Seabrook [2009] EWHC 1849 (Admin).”
E2. No leave granted under Order 41A rule 9(2)
14. This Court was not sure how the plaintiff applied for and obtained leave from Judge Levy until after reading the lower court file shortly before the hearing on 5 August 2016 and confirming with Mr Cheung at the hearing. Having clarified the matter, we have no doubt whatsoever that the plaintiff had not obtained the requisite leave from Judge Levy under Order 41A, rule 9(2). The simple reason is that neither the Statement nor Chan’s Affirmation made any reference to Order 41A, rule 9. Judge Levy’s attention was simply not drawn to it at all. In the circumstances, she could not have granted any leave under Order 41A, rule 9(2).
15. Mr Cheung submitted that he had in fact considered Order 41A, rule 9 when he prepared the leave application. When he drafted Chan’s Affirmation and the Statement, he did have some of the points in the commentary in §41A/9/1 of the Hong Kong Civil Procedure 2016 in mind. Thus it was said in both documents that the defendant did not have an honest belief in the truth of the Witness Statement when he made it and he made it to mislead the court, hence to interfere with the administration of justice and that it was in the public interest to commit him accordingly. Further, the judgment of Deputy Judge Wong was exhibited to Chan’s Affirmation. When one read [83] of his judgment, one was clear that the plaintiff was proceeding under Order 41A, rule 9. Mr Cheung therefore submitted that when reading the Statement and Chan’s Affirmation, Judge Levy must have been fully aware of the basis of the leave application, that is, it was brought under Order 41A, rule 9. He further submitted that Judge Levy must be taken to have been familiar with the RDC including Order 41, rule 9 when she dealt with the leave application. So, Mr Cheung reasoned, the failure to refer to Order 41A, rule 9 was just a technical slip. Judge Levy must have granted leave under Order 41A, rule 9. With the greatest respect, we disagree.
16. An application for leave to commence committal proceedings is made ex parte to a judge who will usually determine the application without an oral...
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