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Xu Ying v Xu Weihong

Judgment Cited authorities 18 Cited in Precedent Map Related
Vincent
Judgment Date21 September 2021
Neutral Citation[2021] HKCA 1416
Judgement NumberCAMP216/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP216/2020 XU YING v. XU WEIHONG

CAMP 216/2020

[2021] HKCA 1416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 216 OF 2020

(ON AN INTENDED APPEAL FROM HCA NO. 2650 OF 2017)

________________________

RE:
XU YING Plaintiff
(徐鷹)
and
XU WEIHONG Defendant
(許偉紅)

CACV 421/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 421 OF 2021

(ON APPEAL FROM HCA NO. 2650 OF 2017)

________________________

BETWEEN
XU YING (徐鷹) Plaintiff
and
XU WEIHONG (許偉紅) Defendant

________________________

Before : Hon Cheung and G Lam JJA in Court
Date of Hearing : 23 August 2021
Date of Judgment : 21 September 2021

________________________

J U D G M E N T

________________________

Hon Cheung JA (giving the Judgment of the Court) :

I. The appeal

1. This appeal is concerned in the main with the service out of jurisdiction provision of Order 11, rule 1(1)(f) of the Rules of the High Court (‘RHC’) which provides that :

‘ (f) the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction;’

The gateway of this rule is the commission of a tort (‘Gateway F’). The tort may be committed outside or within Hong Kong. Where the tort was committed outside Hong Kong, the necessary requirement is that the damage was sustained in Hong Kong. This has been interpreted as meaning that significant damage was sustained in Hong Kong : Fong Chak Kwan v Ascentic Limited and othersCACV 358/2020, [2021] HKCA 1138 following Dynasty Line Ltd v Sukamto Sia [2009] 4 HKLRD 454. The other situation is where the tort was committed in Hong Kong and the damage has resulted from such an act.

2. In this case, the plaintiff relied on two types of tort being committed by the defendant in Hong Kong, namely, defamation and malicious falsehood. The plaintiff claimed that the defendant who is a resident in the Mainland had published defamatory words against him in Hong Kong and also committed the tort of malicious falsehood. The plaintiff also sought an injunctive relief under Order 11, rule 1(1)(b) (‘Gateway B’). He obtained an order from the Master for the concurrent writ to be served on the defendant outside the jurisdiction. The service out order was, on the application of the defendant, set aside by Deputy High Court Judge M K Liu. The Judge refused to grant leave to appeal. In CAMP 216/2020, the plaintiff renewed the application for leave to appeal before us. The Court directed a rolled up hearing in that if the Court was to grant leave, it would proceed immediately to hear the appeal. Upon hearing the parties, the Court granted leave. The plaintiff had according to our direction filed and served the notice of appeal in CACV 421/2021.

II. Background

3. The Judge summarised the case as follows :

‘ Background

5. At the material times,

(1) P [i.e. the plaintiff] was the chairman, shareholder and director of China Review News Agency Limited (中國評論通訊社有限公司, “CRNA”), a company incorporated in Hong Kong on 1 February 2005. According to P, CRNA is a digital network news agency in the Greater China Region.

(2) P was also a non-executive director and vice chairman of eBiz.com Limited. The name of the company was changed to China Gas Holdings Limited (中國燃氣控股有限公司, “China Gas”) in August 2001. On 2 June 2003, P was the executive director and vice chairman of China Gas. P was removed from the board of China Gas by a resolution passed during an EGM on 26 April 2011.

(3) According to P, he had “close connections” with the Liaison Office of the Central People’s Government in the HKSAR (中央人民政府駐香港特別行政區聯絡辦公室, “LOCPG”) and Taiwan Affairs Office of the State Council (國務院台灣事務辦公室, “TAO”). P also claimed that he was an official of the TAO.

6. D is ordinarily resident in Cangzhou City, Hebei Province in Mainland China. D’s case is that at the material times, she held various management positions with different subsidiaries of China Gas, and positions with various government departments in Cangzhou City.

7. On 16 November 2011, a group who claimed to be minority shareholders of China Gas published a statement in “Sharp Daily”, a newspaper in Hong Kong (“the Sharp Daily Article”), demanding China Gas to explain, inter alia, whether a company called 重慶市川東燃氣工程建設有限公司(“Chongqing Chuandong”) is a corporation owned by connected persons and senior management of China Gas. According to the Sharp Daily Article:

(1) 武漢中燃實業有限公司(“Wuhan China Gas”) and 深圳中油嘉禾貿易發展有限公司 (“Golden Harvest”) held 51% and 39% respectively in Chongqing Chuandong as of 31 May 2006. It is alleged that Wuhan China Gas then transferred 7% of its shareholding to Golden Harvest on 17 August 2006, resulting in Golden Harvest holding 46% in Chongqing Chuandong.

(2) D became the legal representative and sole shareholder of Golden Harvest since December 2007.

(3) The alleged minority shareholders questioned why Wuhan China Gas transferred its shareholding to Golden Harvest.

8. On or about 20 November 2011, D signed the Declaration, in which she provided a response to the allegations in the Sharp Daily Article. The gist of the response is as follows:

(1) Towards the end of 2007, P (who purportedly represented the TAO) contacted D and signed a trust agreement with D for D to hold shares in Golden Harvest on behalf of CRNA (ie the Trust Agreement).

(2) D [i.e. the defendant] was told by P that the CRNA was a fully funded organization by the TAO in Hong Kong, and Golden Harvest was the working platform for CRNA in Shenzhen. For confidentiality reasons, CRNA did not want to hold shares in Golden Harvest directly.

(3) Because D worked for the government, TAO gave the approval for D to hold the relevant shares.

(4) As such, D was only a nominee shareholder of Golden Harvest, and did not concern herself with the operation of the company.

(5) D learned that P had disclosed the above to newspapers in Hong Kong and put the blame on D. As a result, D wished to disclose the Trust Agreement with the Declaration and specifically asked that the relevant senior departments of the TAO to clear D’s name on this matter (請國台辦上級相關部門還本人 一個清白).

9. The Trust Agreement specifies that, inter alia, D would hold the 100% shares in Golden Harvest as nominee only and CRNA would have all beneficial interest in the shares.

10. P’s case is that the Trust Agreement is forged and the content of the Declaration is false. P says that by publishing the same in Hong Kong, D has committed libel and malicious falsehood.

11. The details of the alleged publication of the Declaration and the Trust Agreement in Hong Kong are as follows:

(1) P claims that the Declaration and Trust Agreement had been published, either by D or through Mr Feng Zhuozhi (“Feng”), a former non-executive director of China Gas, to other third parties in Hong Kong. This is denied by D.

(2) According to P, he first discovered the existence of the Declaration and Trust Agreement in late December 2011 when he was informed the same from officials of the TAO and the LOCPG:

(a) Mr Li Xiaoyun (“Li”) (allegedly a director of Centre of Strait Economy & Science‑Tech Cooperation (海峽經濟科技合作中心, “CSESC”, an institution under the TAO) and the TAO, informed P that someone (which P claims to be Feng) had provided the Declaration and the Trust Agreement to the LOCPG.

(b) According to media reports, Li was also one of the “parties” (當事人) to the relevant events concerning the Declaration and the Trust Agreement, and a former director of China Gas who was removed in the same EGM on 26 April 2011 along with P.

(c) P claims that he attended the office of LOCPG in Hong Kong on 27 December 2011 and met with a Mr Tang Yiyuan (“Tang”), allegedly the director of the Taiwan Affairs Department of the LOCPG. It is said that P was shown the Declaration and the Trust Agreement during this meeting, and the documents were annexed to a “Report Letter” allegedly from Feng. The “Report Letter”, however, has not been produced by P in these proceedings.

12. P has produced the following media reports in the Mainland concerning the Declaration and/or the Trust Agreement:

(1) an article in Beijing Times (京華時報) dated 24 March 2012; and

(2) an article in China Business Journal (中國經營報) dated 20 August 2012 (“China Business Journal Article”).’

III. The Judge’s decision

4. The Judge applied the test adopted by this Court in Oriental Group Ltd v Google LLC [2018] 1 HKLRD 1042 for service out under Gateway F, namely, whether a real and substantial tort has been committed in Hong Kong. He accepted the defendant’s submission that there is no convincing evidence showing a good arguable case that a real and substantial tort has been committed by the defendant in Hong Kong. He held :

‘ 18. There is no convincing evidence showing substantial publication of the Declaration and/or the Trust Agreement in Hong Kong.

(1) It is not P’s case that D has circulated the Declaration and/or the Trust Agreement to Feng or any other third parties in Hong Kong.

(2) There is no apparent reason why D would have intended for the LOCPG in Hong Kong to receive (whether through Feng or otherwise) the Declaration and the Trust Agreement. The Declaration made no reference to the LOCPG or any entity in Hong Kong. Instead, D specifically requested in the Declaration that the relevant senior departments of the TAO to clear her name (請國台辦上級相關部門還本人一個清白). It is common ground that the TAO is an office of the State Council in the Mainland.

(3) According to P, the Declaration and the Trust Agreement have been seen by the individuals specifically named by P, namely Li and Tang. Even if this is true, this cannot amount to...

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