GLOBAL MEDICAL SOLUTIONS HONG KONG LTD v. MA MAN LUNG

HCA1560/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1560 OF 2011

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DECISION

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1.  This court handed down the Decision dated 19 May 2016 (“the Previous Decision”) whereby Mr Ma’s appeal from the dismissal of his application for an extension of time to review taxation by a master was refused. In this Decision, this court shall refer to the Previous Decision for the background facts and shall adopt the same abbreviations in addition to those newly defined.

2.  Arising from the Previous Decision, each of the parties makes an application. First, GMS applies by its summons dated 31 May 2016 for a variation of the costs order nisi such that costs of the appeal should be assessed summarily on an indemnity basis to be paid by Mr Ma to GMS.

3.  On the other hand, Mr Ma took out a summons dated 1 June 2016 for his application for leave to appeal. His summons is supported by his affirmation dated 23 August 2016.

4.  I shall first deal with Mr Ma’s application for leave to appeal. I have read his supporting affirmation and heard him at the hearing. Mr Ma merely rehashed his arguments advanced at the last hearing and this court has dealt with all of them in the Previous Decision. Essentially Mr Ma complains about his ignorance of the exact amount of costs taxed until he received the Allocatur and that there was a minor difference between the amount stated in the Letter and that stated in the Allocatur.

5.  I do not find it necessary to deal with the same again in this Decision. Suffice it to say I do not believe his intended appeal has any reasonable prospect of success and Mr Ma does not begin to explain in what respect this court has erred in the Previous Decision. Nor does he argue that the exercise of my discretion was plainly wrong or really perverse. Mr Ma has failed to satisfy the threshold in section 14AA of the High Court Ordinance, Cap.4.. Mr Ma’s application must be refused with costs to GMS.

6.  Now I turn to the application of GMS. It asks for indemnity costs pursuant to O.62 rr.5 and 9A, Rules of the High Court.

7.  As explained in the Previous Decision, this court finds Mr Ma’s appeal to be totally devoid of merit and should not have been prosecuted at all. It was an abuse of the court processes. On this basis, this court is satisfied that it is an appropriate case of indemnity costs to be awarded against Mr Ma. I therefore accede to the application of GMS and grant GMS its costs of the Appeal and of this application on an indemnity basis.

8.  I have two statements of costs submitted by GMS. One is dated 15 June 2016 for the hearing on 26 February 2016 (“the 1^st Statement”) and the other one is dated 29 August 2016 for the hearing on 30 August 2016 (“the 2^nd Statement”). Mr Ma has been given an opportunity to put in his written objections. I am prepared to summarily assess GMS its costs payable by Mr Ma with a view to saving costs. 

9.  By the 1^st Statement, GMS seeks costs in the sum of HK$50,562.10. I do not think it is a reasonable figure even given the voluminous amount of documents filed by Mr Ma. It is plain and obvious that Mr Ma’s appeal was hopeless and the legal representatives of GMS should not be expected to spend so many professional hours on this matter. Taking a broadbrush approach, I allow indemnity costs of HK$20,000 to be paid by Mr Ma to GMS in respect of its costs of the Appeal.

10.  By the 2^nd Statement, GMS seeks costs in the sum of HK$25,026. By the same token, this court can only allow indemnity costs of HK$12,000 to be paid by Mr Ma to GMS in respect of its costs of both its summons and Mr Ma’s application for leave to appeal.

HCA 1560/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1560 OF 2011

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DECISION

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Introduction

1.  This is an appeal of Mr Ma against the order of Master J Wong dated 12 January 2016 (“the Order”) whereby the master dismissed his application for an extension of time to review taxation by way of his summons dated 26 October 2015 (“the Summons”).

Background facts

2.  I shall deal with this appeal by way of rehearing the Summons. However, I should first dispose of Mr Ma’s application for leave to adduce fresh documentary evidence.

3.  Mr Ma accepts that he could have produced those documents before the master and he offers no explanation for his failure to do so. Mr Ma does not explain to me about the materiality of those documents. He is unable to make out any special grounds for admission of them pursuant to RHC O.58 r.1(5). Thus, I refuse to grant him to adduce them for the purpose of this appeal. 

4.  The material taxation hearing (“the Hearing”) took place before Master J Wong on 5 February 2013. The taxation concerned a number of costs orders made against Mr Ma in the present action. Suffice it to say, Global Medical Solutions Hong Kong Ltd (“GMS”) was granted final judgment with costs against Mr Ma on 19 January 2012.

5.  Mr Ma acting in person attended the Hearing. GMS instructed Mr Chan, a law costs draftsman of Billy Chan & Co to appear on its behalf at the Hearing.

6.  Prior to the Hearing, on 8 June 2012, GMS served the relevant documents including a Bill of Costs on Mr Ma with a view to taxation. On 4 October 2012, Mr Ma filed his List of Objection to the Bill of Costs.

7.  At the Hearing, Master J Wong made an order (“the Taxation Decision”) and allowed GMS a total sum of HK$263,961 (“the Total Sum”) as his costs after taxation.

8.  On the following day, Angela Wang & Co., solicitors for GMS, sent to Mr Ma a letter by post at his two addresses (“the Letter”) setting out a breakdown of the Total Sum. Mr Ma was demanded to sign on the Letter to indicate his confirmation within 7 days thereafter.

9.  On 16 September 2015, GMS served on Mr Ma an Allocatur dated 14 September 2015. The amount stated in the Allocatur is HK$263,011.00. Mr Ma was unhappy with the Allocatur and applied by the Summons for a review out of time.

10.  RHC O.62 r.33(2) provides that an application for review of a taxing master’s decision may be made at any time within 14 days after the conclusion of the taxation in which that decision was made or such shorter period as may be fixed by the taxing master. Accordingly, Mr Ma’s application for review by the Summons was late for more than 2.5 years.

11.  Master J Wong heard the application on 12 January 2016 and by the Order he refused Mr Ma’s application.

12.  I note that there is a small difference in the amounts respectively stated in the Letter and the Allocatur. Mr Birks, for GMS, is unable to give an explanation for the difference. However, I do not find this to have any bearing on the Summons.

The Appeal

13.  Concerning the Summons, the issues are whether Mr Ma has an acceptable explanation for the delay and whether he has a reasonable chance of a successful review of the Taxation Decision.

14.  The focus of Mr Ma’s appeal is that he had not heard from GMS for 2.5 years after the Hearing before he was served with the Allocatur. He maintains that he had not received the Letter. Mr Ma finds this unfair as he had already missed the chance to apply for review when he received the Allocatur more than 30 months later.

15.  Mr Ma further complains that GMS has failed to file a notice of intention to proceed before it served on him the Allocatur after a year’s inaction pursuant to RHC O.3 r.6.

16.  I see no merit in either of his contentions. First, regardless of whether Mr Ma actually received the Letter, he was present at the Hearing and the master made the Taxation Decision there and then with reasons orally given. The Taxation Decision having been made by the master at the Hearing, the time for an application for review started to run therefrom without the Allocatur: RHC O.62 r.33(2). There is no reason why he should wait for the Allocatur to apply for review. This is only a lame excuse, which I cannot accept.

17.  Mr Ma further tells this court that he had been occupied with the enforcement proceedings against him by GMS. I do not think this can provide an acceptable explanation for the substantial delay.

18.  His reliance on RHC O.3 r.6 is also misplaced. The service of the Allocatur cannot be within the meaning of an interlocutory proceeding under the rule.

19.  In the absence of a plausible explanation for the protracted delay, I am unable to exercise my discretion to grant Mr Ma an extension of time to apply for review of the Taxation Decision.

20.  On the other hand, Mr Ma does not begin to explain to my satisfaction that his intended review would yield any fruit. I am unable to find any merit at all in his intended review.

Conclusion and Order

21.  In the premises, the Summons is bound to be rejected. Thus, I should uphold the Order and dismiss the appeal of Mr Ma.

22.  Costs should follow the event. I make an order nisi that Mr Ma should pay forthwith GMS its costs of and occasioned by his appeal, to be taxed if not agreed.

HCA 1560/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1560 OF 2011

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J U D G M E N T

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1.  The Plaintiff is a Hong Kong company carrying on the business of trading in radioactive and pharmaceutical products in Hong Kong.

2.  The Defendant is a former sales representative of the Plaintiff during the four months between November 2010 and March 2011.  On 11 March 2011, the Plaintiff terminated the Defendant’s employment with immediate effect for reasons set out in the Statement of Claim filed in these proceedings.  On 12 September 2011, the Plaintiff commencing the present proceedings against the Defendant seeking primarily an injunction and damages.  The material facts are set out in the Statement of Claim and shall not be repeated here.  At the hearing, the Defendant told this court he now works as a salesman of medical appliances.

3.  On 19 January 2012, To J granted inter alia[1] an injunction (“Final Injunction”) as follows:

(a) The Defendant be restrained from howsoever (whether on his own account or on behalf of or in conjunction with any person, firm, company or other entity) assaulting, harassing, intimidating, threatening or pestering:

(i) the Plaintiff;

(ii) the directors, officers and employees of the Plaintiff, including but not limited to Jay Simon, Kwong Chung Yin and Wong Patrick;

(iii) the potential and existing suppliers of the Plaintiff, including but not limited to the suppliers as set out in Annexure A attached thereto (the “Suppliers”);

(iv) the directors, officers and employees of the Suppliers, including but not limited to Yim Suk Ming of Covidien HK Ltd;

(v) the potential and existing customers of the Plaintiff, including but not limited to the customers as set out in Annexure B attached thereto (the “Customers”); and

(vi) the directors, officers and employees of the Customers.

(b) Without prejudice to the generality of the above, the Defendant be restrained from howsoever (whether on his own account or on behalf of or in conjunction with any person, firm, company or other entity) assaulting, harassing, intimidating, threatening, or pestering persons mentioned hereinabove (the “Relevant Persons”) and /or from interfering with the economic interests and/or rights of the Plaintiff by conducting, committing and/or engaging in the following acts or conduct :

(i) communicating, whether directly or indirectly, with the Relevant Persons, with the intent to do any act restrained above, whether in writing or orally, including but not limited to (a) making telephone calls (b) sending faxes (c) sending text messages through mobile phones; and (d) sending emails/letters;

(ii) placing false and/or bogus orders with the Suppliers purportedly on the Plaintiff’s behalf;

(iii) impersonating the Customers and/or using false instruments to place false and/or bogus orders with the Plaintiff;

(iv) holding out and/or misrepresenting to the Suppliers and the Customers that he had the authority to act on behalf of the Plaintiff;

(v) purportedly doing any act on behalf of the Plaintiff; and

(vi) making false and/or inaccurate report and/or complaint against the Plaintiff.

4.  The Final Injunction was granted by To J upon the failure of the Defendant to file a Defence to the Statement of Claim herein, but after hearing both the Plaintiff and the Defendant (acting in person) at the hearing.

5.  By summons filed on 5 July 2012, the Defendant sought leave to appeal against the Order made by To J on 19 January 2012 out of time. On 14 August 2012, To J, after hearing solicitors for the Plaintiff and the Defendant in person, dismissed the Defendant’s leave application.

6.  There are two applications by the Defendant before this court.

7.  First, the Defendant applied by an undated summons probably issued on 28 January 2016 (“1^st Summons”) seeking to set aside an interim injunction, similar in terms to the final one granted by To J, granted by Yam J on 16 September 2011.  At the hearing before this court, the Defendant confirmed that he would withdraw the 1^st Summons. The only issue outstanding is the question of costs.

8.  Second, the Defendant applied by summons dated 29 February 2016 (“2^nd Summons”) seeking to set aside the Final Injunction.  The 2^nd Summons is supported by an affirmation of the Defendant (“Ma 1”) dated 9 March 2016.

9.  While Ma 1 contains a large number of exhibits, the body itself is quite short.  Judging from Ma 1’s content, it would appear that the Defendant is complaining the lack of a time limit in the Final Injunction and that is very unfair to him.  The Defendant seems to take the view that four years have already expired since the grant of the Final Injunction and it should be about time to discharge it.  Further, the Final Injunction covers a large number of the Plaintiff’s potential and existing customers which are either hospitals or medical centers in Hong Kong with a department of nuclear medicine and clinical oncology.  The Defendant seems to be of the view that the Final Injunction precludes him from competing with the Plaintiff or contacting its customers and/or suppliers.

10.  The 2^nd Summons is opposed by the Plaintiff.

11.  Mr Birks, for the Plaintiff, submits that the application is misconceived. This court agrees.

12.  First, the present Action having been concluded and the Final Injunction Order having been drawn up, sealed and perfected on 10 February 2012, it seems that this court (or To J for that matter) is functus officio and has no jurisdiction to discharge it.  Only the Court of Appeal can discharge the Final Injunction on appeal but the Defendant is way out of time by now.

13.  In Andayani v Chan Oi Ling [2000] 4 HKC 233, at 237 C-D, Keith JA stated:

“There must, of course, come a time in any proceedings when the court must be regarded as having completed its task. When that time is reached, the court is said to be functus officio. Once that stage has arrived, the court has no further jurisdiction over the case. But when does that stage arrive? The answer given by the common law is when the judge's order has been drawn up, entered or otherwise perfected.”

14.  The same principles apply to a consent judgment.  In Moores Rowland (a Firm) v Grant Thornton (a firm) and ors,HCA 735/2010, HCA 1126/2010, HCA 1873/2010 and HCMP 1284/2011, 8 June 2012, Deputy Judge Lok, having referred to Andayani v Chan Oi Ling, stated as follows:

“28. Secondly, the principle of functus officio is equally applicable to an order made without any judicial determination or exercise of judicial discretion.  As I see it, whether the consent order is approved by the judge or master or entered pursuant to O 42 r 5A, the most important issue here is that there must “come a time in any proceedings when the court must be regarded as having completed its task”, beyond that the court has no further jurisdiction over the case.”

15.  Second, even assuming for the sake of argument that this court has jurisdiction to discharge the Final Injunction, this court is not satisfied that it should exercise its discretion to do so.  This court has carefully considered the contents of Ma 1 and the submissions of the Defendant at the hearing.  There are simply no grounds on which this court can act to discharge the Final Injunction.  Contrary to what the Defendant submits, the Final Injunction does not preclude him from competing with the Plaintiff, working in the business of trading in radioactive and pharmaceutical products in Hong Kong or, if he wishes to do so, carrying on such business.  It also does not preclude him from working as a salesman of medical appliances which he presently is doing.  All that the Injunction does is to restrain him from assaulting, harassing, intimidating, threatening or pestering the relevant entities or persons.  That is something which the Defendant is not supposed to do anyway.  It is difficult to see what prejudice the Defendant will suffer or why it is unfair to him by virtue of the continued existence of the Final Injunction.

16.  For these reasons, the discharge application is misconceived and should be dismissed.

17.  This court hereby makes the following orders:

a. leave to the Defendant to withdraw the 1^st Summons with an order nisi that costs be to the Plaintiff to be summarily assessed on paper and paid by the Defendant forthwith;

b. the 2^nd Summons is dismissed with an order nisi that costs be to the Plaintiff to be summarily assessed on paper and paid by the Defendant forthwith.

18.  In the absence of an application to vary the costs order nisi within 14 days, the above costs orders shall become absolute.

19.  The Plaintiff is directed to file and serve its revised statement of costs within 14 days. The Defendant is directed to file and serve his comment on the revised statement of costs, if any, within 14 days thereafter.  Costs will then be assessed by this court on paper without further hearing.

HCA 1560/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1560 OF 2011

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REASONS FOR DECISION

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Introduction

1. This is the defendant’s application for leave to appeal against my order made on 19 January 2012 entering judgment against him.

2. The background leading to the application is as follows.  The defendant was a former employee of the plaintiff, having been employed for four months from 1 November 2010 until 11 March 2011 when he was dismissed.  The plaintiff’s case is that thereafter, the defendant launched a massive scheme to assault, intimidate and harass the plaintiff as well as its employees, customers and supplies.  The harassment mainly consisted of making silent telephone calls to the plaintiff and its staff, placing unauthorised orders on behalf of the plaintiff with its suppliers, placing bogus orders with the plaintiff allegedly on behalf of the plaintiff’s clients and making unjustified complaints to the regulatory authorities against the plaintiff.  Between 18:40 hours and 23:59 hours on 19 July 2011, the silent telephone calls amounted to 144 calls to the plaintiff’s general manager Mr Kwong.

3. On 12 September 2011, the plaintiff issued a writ with a general indorsement of claim against the defendant.  At an ex parte hearing on 16 September 2011, Yam J granted an interlocutory injunction restraining the defendant from committing further offending acts.  On 21 September 2011, the defendant filed an acknowledgement of service contesting the plaintiff’s claim.  On 18 October 2011, he filed what he called a “Letter of Defence” denying the offending acts complained of.  Then, on 18 November 2011, the plaintiff filed a statement of claim which was served on the defendant.  However, the defendant did not file any defence.  On 9 January 2012, the plaintiff issued a summons pursuant to Order 19, rule 7 of the Rules of the High Court for leave to enter judgment against the defendant in default of service of a defence.

4. The plaintiff’s application was heard before me on 19 January 2012.  No affirmation had been filed by the defendant in opposition.  At the hearing, he denied the offending acts complained of.  I rejected his argument and entered judgment against him.  On 5 July 2012, six months later, he applied for leave to appeal my order.

The applicable legal principles

5. Order 19, rule 7 of the RHC provides as follows:

“(1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rule 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.”

6. Thus, if no defence has been filed and the court is satisfied that the matters pleaded in the statement of claim support the claim sought by the plaintiff, the court shall give such judgment as the plaintiff is entitled to according to his statement of claim.  It is not strictly necessary for the court to consider the substantive merits of the plaintiff’s action and the evidence: see Hong Kong Civil Procedure 2012, paragraph 19/7/11. Though phrased in mandatory terms, the rule is not mandatory but discretionary, and the court has discretion not to give judgment or to extend the defendant’s time to file a defence if it is just to do so: see Hong Kong Civil Procedure 2012, paragraph 19/7/13.

7. Order 19, rule 9 gives the court power to set aside or vary any judgment entered in pursuance of this order.  This is a very wide discretion.  As with any discretionary powers, it must be exercised in accordance with legal principles.  In my view, if a judgment is regularly obtained pursuant to Order 19, rule 7, it may only be set aside as if it were a summary judgment entered pursuant to Order 14.  The legal principles applicable to applying for leave to defend under Order 14, rule 4 apply.  In brief, the defendant has to show he has a real or bona fide defence.  There are many authorities as to the test of real or bona fide defence.  They are all similar.  I just need to quote the oft-quoted dicta of Bokhary JA, as he then was, in Re Safe Rich Industries Ltd [1994] HKLY 183:

“The test at the summary stage is indeed as simple as whether the defendant’s assertions are believable. But it must be recognized – because failure to recognize it would create a debt-dodger’s charter – that whether the defendant’s assertions are believable is a question to be answered not by taking those assertions in isolation but rather by taking them in the context of so much of the background as [is] either undisputed or beyond reasonable dispute.”

Application for judgment

8. At the hearing on 19 January 2012, Mr Lazim, solicitor acting for the plaintiff, demonstrated that the matters pleaded in the statement of claim support the claim sought by the plaintiff.  He submitted that the court shall give such judgment as the plaintiff is entitled.  I did not take that submission too seriously as I had discretion not to enter judgment and to give such direction for filing of defence and the further conduct of the case.  This was particularly so as the defendant was not legally represented and had denied the offending acts complained of in his Letter of Defence.  I proceeded to examine if the defendant has a bona fide defence.  I treated the defendant’s submission on the facts as if they were contained in his affirmation.

9. As regards the silent telephone calls, they were made from either of the telephone number 64298425 or 62973795.  Police inquiries confirmed that as the calls were made from phone cards, the identity of the caller could not be identified. Therefore, the defendant argued that there was no evidence that he was the owner of the phone cards or that the calls were made by him.  However, Mr Lazim referred me to two e-mails which, he submitted, if read together amounted to an admission by the defendant that he was the caller.

10. On 10 July 2011, the plaintiff’s chief executive officer, Jay Simon wrote to the defendant via e-mail as follows:

“Dear Henry,

I am asking you as a gentleman and as a person of honor to stop calling and telephone harassing Kenneth, suppliers and others associated with [the plaintiff]. I realize things did not work out for you while at GMS and I have offered to be a reference for you should you need one. However if this harassment continues, we will be forced to take legal action, up to and including filing a police complaint. We do have evidence you are making the calls.

Henry, I am appealing you to find peace and to move on.  I am hoping that we can put this behind us, and still find a mutual collaboration.  Thank You, Jay”

Thus, Jay Simon specifically referred to the harassing telephone calls, ie the silent telephone calls to the plaintiff’s staff, suppliers and others, and pleaded the defendant to stop. 

11. According to Mr Lazim, to that e-mail, the defendant responded on 16 July 2011.  Not known to me at the time, but as revealed by the defendant’s affirmation in the present application, there was one intervening e-mail issued by the defendant on 10 July 2011.  But in the end, as I shall explain, it made no difference. The defendant wrote on 16 July 2012:

“My bottom line is: fire or get rid of Patrick in [the plaintiff].

Then, we are happy to settle mutual collaboration in foreseeable future.  I have plenty of solicitors to file a series of complain / investigation / findings.”

12. Patrick was the defendant’s former supervising officer against whom the defendant had a grudge.  In the face of the allegation by Jay Simon that the defendant made the silent telephone calls, one would expect the defendant to protest if he was not the caller.  But, instead, he demanded Patrick’s dismissal as a settlement.  Mr Lazim submitted that the defendant’s e-mail is an implied admission that he was the maker of the silent telephone calls and he demanded Patrick’s dismissal as a condition for his stopping the nuisance.  In the light of the circumstances, I agree that this is evidence on which the above inference could be drawn.

13. As regards the unauthorized orders placed by the defendant on behalf of the plaintiff, the plaintiff’s case according to Kwong’s affirmation is as follows.  The defendant had obtained the password from the plaintiff’s supplier RadQual LLC (“RadQual”) to enter RadQual’s order system.  After his dismissal, RadQual received three orders dated 13, 16 and 17 March 2011 from the plaintiff for goods worth US$3,330, US$6,306 and US$10,898.  The orders were out of line with the usual orders of about US$3,000.  Hence, RadQual made inquiries with the plaintiff and the plaintiff discovered that the orders were placed via the defendant’s e-mail account with the plaintiff after his dismissal and were unauthorized.  Kwong’s affirmation was supported by exhibits from RadQual. Apart from making a bare denial in his Letter of Defence, the defendant did not respond to Kwong’s affirmation.  I understand it is difficult to prove the negative.  But the evidence against him is overwhelming, cogent and supported by documentary exhibits and is incontrovertible.

14. The plaintiff’s case of the defendant placing bogus order with the plaintiff is as follows.  It is the plaintiff’s practice to issue template purchase order form for its usual customers.  At 2:17 p.m. on 4 April 2011, the plaintiff received by fax one such order purporting to be issued by its customer Irad Kowloon (“Irad”).  The order form did not bear the chop of Irad and did not show the identity of the incoming fax.  The plaintiff made the delivery but was advised by Irad that no such order had been placed.

15. Next, Kwong referred to the unscheduled inspection of the plaintiff’s premises by the Pharmacy and Poisons Board in May 2011 and by the Radiation Board on 5 and 13 May 2011.  Kwong said in his affirmation that the investigating officers informed him that they had received complaints from a former employee of the plaintiff.  The plaintiff also received inquiries from the Oriental Press Group Ltd about the sale of drugs which had not yet been registered with the Department of Health.  The plaintiff suspected these inspections and inquiries were caused by the defendant. 

16. Mr Lazim referred to two e-mails to support the plaintiff’s case.  On 16 July 2011, the defendant wrote to Jay Simon:

“We knew the bad history of Syncor for corruption in Taiwan and heavy penalty charged by USA government.

My bottom line is : fire or get rid of Patrick in [the plaintiff].

Then, we are happy to settle mutual collaboration in foreseeable future.  I have plenty of solicitors to file a series of complain / investigation / findings.”

On 19 August 2011, the defendant wrote to Jay Simon again, saying:

“How’s your founding on Patrick? You can’t act like an ostrich and always ask me for peace. If no official apology and possible solution, I am sorry to tell you we have a series of legal action on this.

You don’t need to pretend my question before.  Why sync or heavily fined by Federal Government and there should be something behind.”

17. Syncor was the predecessor of the plaintiff.  In Jay Simon’s reply, he said that the charge against Syncor were dropped.  This was besides the point.  Mr Lazim submitted that these e-mails carried an implied threat that the defendant had evidence of corruption or other irregularities of the plaintiff and was in a position to bring about complaints and investigations resulting in heavy penalty to the plaintiff.  Mr Lazim submitted that this threat supported the plaintiff’s belief that the unscheduled inspection by the authorities was instigated by the defendant.  I, nevertheless, consider this a surmise.

18. But on the totality of the evidence, the plaintiff presented a strong case of the defendant making the silent telephone calls and placing unauthorized orders. The case was unanswered except for a bare denial.  I considered the bare denial not credible and unsupported by evidence.  The defendant was simply unable to pass the test in Re Safe Rich Industries Ltd.  Therefore, the discretion not to enter judgment should not be exercised.  It would serve no purpose to allow time for the defendant to file a defence which would only delay the inevitable.  This case should be brought to an end as soon as possible.  The plaintiff should not be forced to incur further costs to allow the litigation to run its full unwarranted course.  Accordingly, I refused to exercise the discretion not to enter judgment and so entered judgment against the defendant with costs.

Application for leave to appeal

19. On 5 July 2012, the defendant issued a summons seeking leave to appeal my order made on 19 January 2012 entering judgment against him.  His application was supported by his affirmation filed on 9 August 2012.  He sought direction for the plaintiff to file affirmation in opposition, for him to file affirmation in reply and to have his application adjourned for argument.

20. As I have already indicated, the proper course would have been for the defendant to apply to have the judgment set aside pursuant to Order 19, rule 9 and not to appeal against the judgment.  In any event, the application was made out of time.  As the defendant was not legally represented, I took the extra caution of investigating if there was any reason for setting aside my order made on 19 January 2012.

21. In his affirmation, the defendant produced 24 exhibits.  All except exhibit MML-15 was relevant.  In that exhibit, he exhibited one intervening e-mail dated 10 July 2011 at 10:33 am from him to Jay Simon shortly after his receipt of Jay Simon’s e-mail at 3:32 a.m.  That e-mail should be taken as his immediate response to Jay Simon’s e-mail requesting him to stop the harassing telephone calls.  In that e-mail, he complained about receiving continuous calls with blocked number and that Patrick sent him many harassing e-mails from ip addresses which allegedly were from Patrick’s desktop and cell phone.  In Exhibit MML-12, he exhibited an e-mail dated 14 April 2011 issued from one such ip address purportedly from his own father to him saying in rude language that he was stupid.  He said that was a harassing e-mail from Patrick.  He mentioned other things in his e-mail to Jay Simon which were not relevant.  It is important to note that in that e-mail he did not deny that the hundreds of silent telephone calls were made by him.  The thrust of his e-mail dated 10 July 2011 seemed to be that he was justifying what he did because Patrick had been harassing him with e-mails.  In another e-mail dated 22 July 2011 to Jay Simon, the defendant made an unspecific complaint about the plaintiff’s staff insulting his family.  One unlawful act cannot justify another unlawful act in retaliation.  Even if what the defendant said was true, I do not think these e-mails contained in MML-15 advanced his case any further.

22. The defendant argued by referring to his Exhibit MML-19 that the privacy policy of the Radiation Board was that they would not disclose the identity of the complainant and hence it was unlikely that the board would have informed the plaintiff that it received complaints from its former employee.  I do not consider this argument advanced the defendant’s case further as I gave no weight to the plaintiff’s complaint against the defendant in this regard.

23. Thus, the position remained as it was on 19 January 2012.  The defendant was unable to show a credible or bona fide defence as to justify the court to exercise the discretion not to enter judgment or to have the judgment entered set aside.  Accordingly, it would serve no useful purpose to assist the defendant to put him back in the proper course.  He would fail just the same.

24. I now turn to the grounds of appeal relied on by the defendant.  First, he referred to his Exhibit MML-23 which contained three pages from the plaintiff’s bundle used at the hearing on 19 January 2012.  His complaint was that these documents were in Chinese and had not been translated into English.  He complained that this was unfair. These documents related to change of directors of a company in the People’s Republic of China which have no bearing on the issue I had to decide in this case.  In any event, the matter was heard before me, being a bilingual judge. There is no substance in this ground of appeal.

25. Second, the defendant argued that as he had filed the Letter of Defence, the court is wrong to enter judgment in default of defence.  As I have indicated, the Letter of Defence was filed before the statement of claim was filed and served and could not have been a defence to the statement of claim.  It was not supported by a statement of truth.  I have, in any event, duly considered the defence stated therein but of the view that the defence being a bare denial was not credible and did not pass the test in Re Safe Rich Industries Ltd. There is no substance in this ground of appeal.

26. Third, the defendant said he is a layman and not familiar with the judicial process. This cannot be a ground of appeal.  Indeed, I have given him all the assistance he could expect from the bench and I have considered all possible issues in his favour.  But that still could not avail him.

27. As for the delay in lodging this appeal, the defendant argued that he had not been told about the time within which the appeal had to be lodged.  Even giving him the benefit of that argument, the application for leave was badly out of time. He advanced no credible explanation for the delay.

Conclusion

28. There is no substance in his grounds of appeal.  The appeal was lodged out of time. No credible explanation was advanced for the delay.  For reasons as explained in paragraph 18 above, the discretion not to enter judgment should not be exercised in the defendant’s favour.  He was unable to show a credible or bona fide defence as to justify setting aside the order.  In the circumstances, the only appropriate course is to refuse his application for leave to appeal.  Accordingly, his application for leave to appeal is refused with costs to the plaintiff to be assessed by way of gross sum assessment.

Mr Suhaimi Lazim of Angela Wang & Co, for the plaintiff

The defendant appeared in person, present