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Santa Monica Equity Inc. v Christelle Fila Nzololo

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date06 January 2022
Neutral Citation[2022] HKCFI 111
Citation[2022] 1 HKLRD 752
Judgement NumberHCMP214/2021
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP214/2021 SANTA MONICA EQUITY INC. v. CHRISTELLE FILA NZOLOLO

HCMP 214/2021

[2022] HKCFI 111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 214 OF 2021

_______________________

IN THE MATTER OF an application by Santa Monica Equity Inc. (“the Applicant”) against Christelle Fila Nzololo (“the Respondent”) for an Order of Committal under Order 52, Rule 1 of the Rules of the High Court (Cap. 4A)

_______________________

BETWEEN
SANTA MONICA EQUITY INC. Applicant
AND
CHRISTELLE FILA NZOLOLO Respondent

____________________

Before: Hon Anthony Chan J in Court

Date of Hearing: 6 January 2022

Date of Judgment: 6 January 2022

________________

JUDGMENT

________________

1. This is the Applicant’s (“Santa Monica”) Originating Summons filed on 17 February 2021 seeking the Respondent’s (“Nzololo”) committal based on alleged forgery adduced in proceedings by the latter to set aside a statutory demand (“Set Aside”) served on her by the former.

2. Nzololo has been served all the relevant documents for these proceedings pursuant to an Order for substituted service dated 7 June 2021 (“Order”). She has chosen not to participate in these proceedings and has not appeared at the hearing. It was ordered by this court that the hearing should proceed in her absence.

Background

3. Santa Monica is a Marshall Islands company. It was beneficially owned by the late Mr George Catsiapis (“Deceased”) until his death on 30 September 2018. It is now so owned by the Deceased’s heirs.

4. According to Nzololo’s affidavit filed on 14 January 2020 (“Affidavit”) in support of the Set Aside, she was born in Congo. She moved to Belgium when she was 8 years old, and she was living in Hong Kong with her family. She was the Deceased’s administrative assistant before his death.

5. Following his death, the Deceased’s heirs engaged Ms Lina Adeeb, who had worked with the Deceased for “decades”, to take stock of his assets which included Santa Monica. In the course of investigation, Ms Adeeb discovered that on 15 August 2018, €150,000 (“Sum”) was transferred from Santa Monica’s bank account to that of Nzololo for a project that was never performed.

6. After Nzololo refused to return the Sum, on 27 December 2019 Santa Monica’s solicitors, Messrs Kobre & Kim (“K&K”), served on her a statutory demand. On 14 January 2020, Nzololo, acting via her solicitors, Messrs King & Wood Mallesons (“KWM”), applied to set aside the statutory demand.

7. Nzololo admitted in the Affidavit that she had kept the Sum, but alleged that she was permitted to do so by reason of a set-off because Santa Monica owed her €272,000 (“Debt”). The only evidence she adduced in support of the Debt was a one-page letter dated 20 March 2018 (“Letter”) purportedly signed by the Deceased, allegedly the authorized representative of Santa Monica, stating that the company owed her a “credit balance” of €272,000.

8. Due to suspicion over the authenticity of the Letter based on, inter alia, the mis-spelling of the Deceased’s name, Ms Adeeb commissioned a report by handwriting experts, Mr Khody Detwiler and Mr Gus Lesnevich, on the authenticity of the document and the signature thereon (“Report”).

9. The Report concluded “with the highest degree of confidence” that the Deceased’s signature on the Letter was a “cut-and-paste simulation, or forgery”.

10. On 17 January 2020, K&K wrote to KWM contending that the Letter was forged and demanding that Nzololo confirms its authenticity. Neither Nzololo nor KWM responded to the letter. On 23 February 2020, Santa Monica filed an affidavit exhibiting the Report and putting forth the contention of forgery for purpose of the Set Aside.

11. On 19 March 2020, KWM conveyed that they had ceased to act for Nzololo appending a Notice to Act in Person (“Notice”) signed by Nzololo with a stated residential address in Hong Kong (“Address”) for service[1].

12. Since acting in person, Nzololo had sent no less than 8 correspondences to the court and K&K from 25 March 2020 to 16 February 2021. In those correspondences, Nzololo had never commented on the Letter.

13. After repeated failure by Nzololo to prosecute the Set Aside, it was dismissed by the court on 16 October 2020.

14. On 4 February 2021, Santa Monica obtained leave to apply for committal based on Nzololo’s filing of the allegedly forged Letter in the Set Aside.

15. These proceedings are supporting by, inter alia, an affirmation of Ms Adeeb filed on 23 February 2021 (“Affirmation”) exhibiting the Report.

16. All the relevant documents have been duly served on Nzololo in accordance with the Order: (1) by delivery to KWM; (2) by delivery and registered post to the Address (which was also used in Nzololo’s correspondences to the court); and (3) by email to the address she had used to correspond with K&K and in correspondences with the court.

17. Nzololo has failed to acknowledge service of the Originating Summons or to attend the call-over and PTR hearings on 23 July and 15 November 2021 or to file any opposing evidence.

Issues

18. There are three issues for determination:

(1) Authenticity Issue – whether the Letter is authentic;

(2) Interference Issue – whether the filing of the Letter was likely to interfere with the course of justice; and

(3) Knowledge Issue – whether Nzololo knew or was reckless to the possibility that the Letter was forged and would likely interfere with the course of justice.

Applicable principles

19. Contempt proceedings of the present nature serve the public interest of promoting the integrity of the legal process and respect for it. They underscore the importance of honesty in making statements or affidavits and in adducing evidence: Chu Kong v Sun Min [2020] HKCFI 2022, §101.

20. It had been established that “misleading the court by the use of forged documents or by presenting a false case is capable of amounting to an act of contempt”: Neil v Henderson [2018] EWHC 90 (Ch), §70. See also Hydropool Hot Tubs Ltd v John Roberjot [2011] EWHC 121, §59.

21. The applicant for committal must prove beyond reasonable doubt: (1) the falsity of the statement; (2) the statement would likely have interfered with the course of justice; and (3) the maker had knowledge that it was false and would likely have interfered with the course of justice: see La Dolce Vita Fine Dining Group Holdings Ltd v Zhang Lan [2018] HKCFI 548, §98.

22. For purpose of committal arising from the filing a forged document or making a false statement, the applicant only needs to show that the false document or statement was “likely” to interfere with the administrative of justice. It is unnecessary to show that the forged document or statement had any actual impact: Neil v Henderson (supra), §§72 and 75.

23. Where an act of contempt consists of filing...

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