FCMC 8507 / 2013
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES
NUMBER 8507 OF 2013
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BETWEEN |
| | D | Petitioner |
and |
| | L | Respondent |
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| Coram: | Deputy District Judge K K PANG in Chambers |
| | (Not Open to Public) |
| Date of Hearing : 14, 18 February 2014 |
| Date of Judgment : 13 March 2014 |
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J U D G M E N T
(Non-Molestation Order)
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1. The parties were married in 1992. The Petitioner (“W”) commenced divorce proceedings in June 2013. The matrimonial proceedings are ongoing.
2. This is W’s application for a non-molestation order and an injunction order against the Respondent (“H”) pursuant to section 3 of the Domestic and Cohabitation Relationships Violence Ordinance, Cap 189 (“the Ordinance”).
3. It is trite that where an interlocutory injunction is sought, the applicant must satisfy the Court that (i) there is a serious issue to be tried; (ii) damages would be an inadequate remedy; and (iii) the balance of convenience lies in favour of a grant of the injunction: American Cyanamid [1975] A.C. 396. The circumstances leading to the present application are set out in W’s 3rd Affirmation and the domestic helper of the family’s Affirmation both filed on 21 November 2013. As stated by W in her 3rd Affirmation, H’s wrongful conduct is summarized as follows:-
(i) On 17, 18 and 20 November 2013, H and/or his agents made repeated attempts to enter W’s residence without invitation or prior notice. They spoke loudly and in a highly impolite manner to W and the maids. They knocked loudly and kicked at the door. When they were refused entry, H and/or his agents broke into W’s residence with the use of force and/or violence. The back door was broken twice within the space of 3 days. On the first occasion, the wooden door and the lock were damaged. On the second occasion, an instrument was used to damage the iron-gate at the back entrance.
(ii) Particularly, on 20 November 2013, H and/or his agents made unwelcome visits to W’s residence for three times within the space of just 3 hours. W was so scared that she had to hide in her bedroom but H opened the door of the bedroom with force.
(iii) On all these occasions, the police were required to intervene but that did not stop H and/or his agents from coming back.
(iv) H also kept pestering W with repeated telephone calls and text messages.
(v) When W refused to respond to H’s repeated telephone calls, H also asked the younger daughter of the family to send text messages to W to request W to talk to H.
(vi) On 20 November 2013, H said to the police officer attending the scene that the company holding W’s residence (of which H used to be but has recently ceased to be a director) was prepared to recover the vacated possession of the property.
4. This matter first came before this Court on 21 November 2013 when Mr Chua of Messrs Pany Leung, Tang & Chua appeared for H and Mr R Pang SC leading Mr Yim, appeared for W. During the hearing dated 21 November 2013, the Court indicated to the parties that they should consider the practical approach of resolving the matter by way of H’s undertakings in terms to be agreed between the parties. Mr Chua told the Court that just before the hearing, he offered to Mr Pang to have the matter resolved by way of undertaking but such offer was not accepted. Mr Pang said that W wanted an injunction order with an authorization to arrest attached rather than an undertaking from H. Upon the Court’s enquiry about what kind of instrument was used to damage the iron gate at the back entrance of W’s residence on 20 November 2013, Mr Pang confirmed it was his instructions that it was an electric saw. Upon reading the affirmation evidence produced by W and having heard the parties, I am satisfied W has managed to show that an interim non-molestation order and an injunction order in terms as set out in the Order dated 21 November 2013 should be granted against H on an ex-parte (with notice) basis, pending full arguments on the return date which is fixed to take place on 25 November 2013. There is leave to the parties to file and serve further affirmations.
5. On 22 November 2013, H filed his affirmation in opposition and the Affirmation of a locksmith who attended W’s residence together with H on 20 November 2013. W filed her replying 4th Affirmation on 23 November 2013.
6. Mr R Egerton and Ms Money Lo appeared for H and Mr R Whitehead SC leading Mr Yim appeared for W on 25 November 2013. During the hearing dated 25 November 2013, Mr Whitehead took note that H’s affirmation contains no remorse, no contrition, no apology and most importantly, no undertaking by H that the conduct complained of will not occur again. Instead, H has decided to advance multifarious reasons and excuses for his conduct. They are as follows:-
(i) W’s residence is owned by P Limited, a company with which H is connected. H says that a licence was granted by P Limited for “[him] and [his] family to live there as part of remuneration as a director” and he has “a duty to ensure the condition of [W’s residence]” (see H’s Affirmation, paragraph 4).
(ii) H claims that on 17 November 2013 he broke the door lock and entered W’s residence because he “felt strange and worried about the safety of the domestic helper/s” or that “someone may have broken into the property or the domestic helper/s may have an accident in the property” (see H’s Affirmation, paragraph 12).
(iii) H explains the visit by Mr Poon, the representative of the landlord and another man to W’s residence on 18 November 2013 as: “Mr Poon decided to go to view the property and to arrange to repair the lock. He also wanted to explain the situation to the Petitioner personally for the vacant possession of the property” (see H’s Affirmation, paragraph 7).
(iv) H also tries to suggest that in a letter dated 8 November 2013, W had “welcome [d] my contact to her and gave me her telephone numbers” (see H’s Affirmation, paragraph 19).
(v) H also suggests “[t]he social welfare officer also advised me that I have to communicate with the Petitioner” (see H’s Affirmation, paragraph 19).
(vi) H then suggests that he went to W’s residence because the younger daughter “was very upset to see her mother’s plain refusal to even reply to her father’s minimal request for communication and negotiation” (see H’s Affirmation, paragraph 22).
(vii) Finally, to explain his behaviour on 20 November 2013, H says he “required documents urgently for my meeting” and “had no alternative except to employ a locksmith to open the door to ascertain the important documents” (see H’s Affirmation, paragraph 27).
7. As said, I have urged the parties to consider resolving the matters by way of H’s undertaking. On 25 November 2013, Mr Egerton told the Court that H proposed to give an undertaking not to visit W’s residence without prior written agreement. However, H needs to go in and out of the place because he has personal things left inside and he has a dog therein. If W goes to Guangzhou, she shall notify solicitors and H shall be permitted to visit the dog. Furthermore, the above is subject to W’s agreement to give a mutual undertaking of non-molestation. In my view, it is astonishing for H to require an undertaking of non-molestation on the part of W. There is no suggestion whatsoever that H has been molested by W. For my part, it is conceivable that H’s undertaking as proposed is unacceptable to W. At the end, it is ordered that:-
(1) The interim non-molestation and injunction Order dated 21 November 2013 be continued upon the same terms as previously ordered until 14 February 2014 or further order of the Court;
(2) There is leave to the parties to file and serve further affirmations;
(3) The matter is adjourned to 14 February 2014 at 10:30a.m. at Court No. 42 (with 1 day reserved) for substantive hearing with oral evidence;
(4) Leave is granted for cross-examining the parties and the deponents of the affirmations respectively filed by the parties.
Mr Egerton, on behalf of the H, has urged the Court to grant an oral hearing.
8. On 16 December 2013, H filed his 6th Affirmation and the Affirmations of his three drivers. On 8 January 2014, W filed her 7th Affirmation. Out of the blue, by a letter dated 13 February 2014 from H’s solicitors, H informed W “Please take notice that our client will seek to discharge the injunction order for tomorrow’s hearing. Following the usual procedure, we will not call any witness nor do we need to cross-examine your client and/or any witnesses of your client.”
9. On 14 February 2014, Ms A Yip and Ms Money Lo appeared for H and Mr Whitehead leading Mr Yim appeared for W. At the beginning of the hearing dated 14 February 2014, Ms Yip on behalf of H proposed, at the eleventh hour, to give undertakings in terms of paragraph 1(a) and (b) of the Order made by this Court on 25 November 2013. I then suggested to Mr Whitehead that as H was prepared to give an undertaking precisely in the same terms of the Order dated 25 November 2013, perhaps W should seriously consider H’s new proposal. With the encouragement of the Court, W eventually decided to accept H’s new proposal and subsequently the parties lodged with the Court the following signed minutes of consent order for the Court’s consideration and approval:-
UPON the Respondent undertaking not to (whether by himself, his servant(s), agent(s) or otherwise howsoever):-
(a) Molest, intimidate, threaten, harass, assault or otherwise interfere with the Petitioner;
(b) Enter or attempt to enter without the Petitioner’s consent the Petitioner’s residence or any other address at which the Petitioner may reside with intent to do any act referred to in paragraph (a) above;
Upon hearing Senior Counsel for the Petitioner and Counsel for the Respondent
IT IS ORDERED that:-
1. Paragraph 1 of the Order dated 25 November 2013 be discharged.
2. Costs and the issue of penal notice will be argued.
10. Then Ms Yip asked the Court to make an order in terms of the minutes of consent order before the hearing of the parties’ arguments on costs and the issue of penal notice, and an order was made accordingly. After that, the Court started to hear the arguments. At around 1pm, the hearing was adjourned for lunch break and was to resume at 2:45 pm in the afternoon.
11. Shortly after the adjournment, together with her solicitor, Mr. Raymond Lam, W was waiting on the pavement kerb to cross Harbour Road. While they were waiting there, W felt that the back of her neck was struck once by a plastic water bottle. In a split second, a person punched the right side of her face twice. She felt very painful. While she was being assaulted, she heard the assailant shouting at her in Cantonese saying “八婆，你夠膽打官司” (roughly translated as “Bitch, how dare would you have the guts fighting litigation”). Immediately, a report was made to the police and W was admitted to hospital for treatment. Mr Whitehead confirmed it is his instructions that the present proceedings are the only legal proceedings that W is involved.
12. When the hearing resumed at 2:45pm, Mr Whitehead made a report to the Court on the assault on W during lunch break and he told the Court that he was instructed that in the circumstance, W wants an injunction from this Court.
13. Ms Yip contended that as an order in terms of the said minutes of consent order had been made, W’s inter-parte application was disposed of, and if W now complains that H is in breach of his undertaking to Court (which H denies), W should consider taking out an application for the enforcement of the undertaking by way of committal proceedings. I take the view that as the order made by this Court in the morning is not yet sealed, the Court has jurisdiction to review the matter. Whether the Court as an alternative to continuing its existing order decides to accept these undertakings is very much a matter for the Court. I fully appreciate that there is no evidence suggesting that H has anything to do with the assault on W. I consider one has to take a matter like this with a modicum of common sense. W must be very frightened. I consider it is understandable that now she wants an injunction from the Court. Thus, it is ordered that the consent Order made by this Court in the morning be revoked. By that time it was about 3:30 p.m. I then decided to adjourn the substantive hearing of W’s inter-parte application. After taking account of the Court’s diary, the hearing of W’s inter-parte application for an injunction order is adjourned to 18 February 2014 and the interim non-molestation and injunction Order was extended to 18 February 2014 on the same terms. In view of what happened during the lunch break, leave is granted to the parties to file and serve further affirmation evidence.
14. Pursuant to the Order dated 14 February 2013, Mr Raymond Lam filed his 2nd Affirmation and W filed her 9th Affirmation on 17 February 2013. Ms Pansy Leung filed her 7th Affirmation, H filed his 8th Affirmation and Ms Money Lo filed an Affidavit on 18 February 2014. On 18 February 2014, Mr Yuen and Ms Money Lo appeared for H and Mr Whitehead leading Mr Yim appeared for W. At the beginning of the hearing, Mr Yuen on behalf of H suddenly applied to have the substantive hearing adjourned on the ground that H now wants to give oral evidence but he is unable to attend today’s hearing because he is diagnosed as mentally unfit to deal with legal matter at the moment. Mr Yuen relied on a letter signed by a Dr Chiu Siu Ming dated 11 February 2014, in which Dr Chiu also stated he considered H needs a course of drug and psychological treatment not less than 3 to 5 months. Mr Yuen also asked the Court to take into consideration the Joint Psychiatric Report dated 13 January 2014 and the Joint Psychological Report dated 16 January 2014 prepared by the parties for the purpose of H’s application for further time for the filing and service of his form E. Mr Yuen accepted that H did not want to give oral evidence at the hearing dated 14 February 2014. He explained that H now wants to give oral evidence at Court because he wishes to address the Court about the assault on W on 14 February 2014. He confirmed that this is the sole reason for H’s change of position.
15. This is a late application, on which no prior notice has been given by or on behalf of H to W or the Court. H said he was going to come to Court for the hearing dated 14 February 2014. Then he said he did not want to come. Thereafter without any prior notice whatsoever he said he is going to come. Mr Whitehead said that if the hearing of W’s inter-parte application will continue today, her case can be finished in about 20 minutes. On the other hand, if H’s application for adjournment is to be granted, it will mean that the hearing of W’s application will have to be adjourned for 3 to 5 months, in view of Dr Chiu’s opinion. About the letter of Dr Chiu dated 11 February 2014, it should be noted that Mr Whitehead holds the position that H has not produced proper medical evidence in support of his present application. What the Court has is a very short letter of Dr Chiu, in which Dr Chiu did not give the necessary details of how his opinion and recommendation are made. For example, there is no information on whether any psychometric assessment was administered for evaluation of H’s cognitive condition. It is noted by Dr Chiu in his letter that H had discontinued drug treatment since mid-December. He stated it was because of H’s work. At first sight, I have to say I have difficulty in understanding why H’s work commitment would be a reason for his discontinuation of drug treatment. In spite of this, from his letter, I do not see that Dr Chiu has made any further investigation in this respect. It is possible that Dr Chiu and H can provide a satisfactory explanation to the above query, but unfortunately neither Dr Chiu nor H is present today. In any event, Mr Yuen confirmed to this Court that the sole reason why H now wants to give oral evidence is that he wishes to make a reply to the assault on W last Friday. In this regard, the question is what he can usefully say about the said incident. As he said he has nothing to do about it, one can draw corollary that there is little that he can usefully say. Also, there is no dispute about the happening of the said incident. W is not making any specific allegation against H. Shortly put, there is no issue about the said incident between the parties that needs to be dealt with. The hearing is coming to an end. I see fit in the circumstance that I should exercise a proactive case management power today instead of allowing the matter to be delayed. After having heard the parties, H’s application for adjournment is refused.
16. It is still H’s position that he will not call any witness nor does he need to cross examine W and/or her witnesses. That is to say, the Court has not heard any live evidence of the parties or their witnesses.
17. Order 38 rule 2(3), Rules of High Court, Cap 4A (“RHC”) provides that:-
“… the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.”
18. The purpose of the adjourned hearing is to receive oral evidence from the deponents of the affirmations filed in these proceedings. The Court at the hearing on 25 November 2013 was concerned that the issues raised by the parties (particularly H’s assertion that he had a right to repeatedly enter the W’s residence) are matters upon which the Court required oral evidence. Consequent to these orders, the parties have spent several weeks preparing affidavits. H’s position as stated in the letter dated 13 February 2014 is that neither he nor his 4 witnesses will now attend Court to give evidence, nor does he wish to cross-examine W and her witness, and instead H applies to discharge a non-existent injunction (the interim non-molestation and injunction Order dated 25 November 2013 expires on 14 February 2014). It is submitted by Mr Whitehead that H’s latest tactic is designed to defeat the whole purpose of this Court’s order reserving a trial day for oral evidence and granting leave to cross-examine the deponents of affirmations made in the proceedings, and H should not be permitted to usurp the process of the Court. Correspondingly and despite the order of the Court, H and his witnesses refuse to get into the witness box to be cross-examined on their affidavit evidence. It is further submitted by Mr Whitehead that in these circumstances, the Court should order that H’s and his witnesses’ affidavit evidence shall not be used as evidence of these proceedings.
19. In Re Chow Kam Fai, ex p Rambas Marketing Co LLC [2004] 2 HKLRD 260 at 271B, P obtained a judgment in Hong Kong against D, who was born in and grew up in Hong Kong, for a sum owed. The debt arose in Las Vegas after D signed “markers” enabling him to obtain a substantial credit line of gambling chips. D failed to pay the judgment debt and a warrant for his arrest was issued under O.49 RHC requiring him to attend court for cross-examination by P. Subsequently, P petitioned for D’s bankruptcy. This was opposed by D on the ground, inter alia, that he was not domiciled in Hong Kong and that his domicile of choice was Macau. D made supporting affidavits in this respect and P applied for an order under O.38 r.2(3) of the RHC which required D to attend court for cross-examination on his affidavits. This was granted by the Judge. The Judge also refused D’s application for such cross-examination to be via video-link, made on the basis that D did not wish to attend court as he was likely to be arrested for examination under O.49 of the RHC, and ordered that his affidavits would be excluded at the hearing of the petition if he failed to attend. The Judge hearing the petition identified four issues that he considered were raised on the matter before him. They were as follows:
(1) Whether the court has power to order the debtor to attend court for cross-examination under O.38 r.2;
(2) If yes, whether the court should order the debtor to attend court for cross-examination;
(3) If yes, whether the court should accede to the debtor’s application for cross-examination via video-link; and
(4) If no, whether the court should exclude the debtor’s affidavit at the hearing of the petition if the debtor fails to attend.
20. The questions (1), (2) and (4) are relevant to the present proceedings. I consider that I can deal with the first question quite simply. The Court undoubtedly has power to order the parties and their witnesses to attend Court for cross-examination under O.38 r. 2(3). The second question is asked on the basis that an applicant was not entitled to cross-examine a deponent on his affidavit as of right. In the present case, Mr Egerton, who appeared for the H on 25 November 2013, urged the Court to grant an oral hearing. Sure enough, there are factual issues that need to be resolved through live evidence. In H’s affirmation filed on 22 November 2013, he claims that he broke the door lock and entered W’s residence because he felt strange and was worried about the safety of the domestic helpers. One maid filed an affirmation to tell the Court what happened on 17 November 2013. What the maid said in her affirmation filed on 21 November 2013 does not sit well with H’s claim. The resolution of the parties’ dispute in this respect is relevant to the issue on whether H has any justification to break the door lock and enter W’s residence on 17 November 2013. About the incident dated 18 November 2013, in his Affirmation filed on 22 November 2013, H said W deliberately made misrepresentation and misled the Court that she was frightened. As to what happened on 20 November 2013, in the same Affirmation H said W amplified and fabricated the whole incident and making use of the incident to make trouble to him. On top of the above, it is W’s evidence that it was apparent to her that H or his agent used an electric saw to break the door to her residence on 20 November 2013. In H’s affirmation, he alleged that in fact an electric drill instead of an electric saw was used and he caused a locksmith to file an affirmation as his witness in support of his evidence. The locksmith produced a picture (“LFY-1”) of the tool that allegedly he used to open the iron gate of W’s residence on 20 November 2013, which shows a pair of pliers, a screw driver and an electric drill. W took issue on H’s allegation that no electric saw was used. Mr Whitehead said he wishes to cross-examine H and the locksmith in that matter. The Court’s attention was drawn to photos (“DJJ-14(a)”) of the damage to the iron bar that was cut off from the iron gate of W’s residence. It appears there was burnt mark at the top of the iron bar. He said he wants to cross-examine H and the locksmith how an electric drill could burn off the iron bar from the iron gate. Taking an overview of the evidence, I regard that clearly there is material for cross-examination. Therefore, I conclude that this is an appropriate case in which to order cross-examination.
21. As to the question (4), it is noted the Court may give leave to use H and his witnesses’ affirmations as evidence notwithstanding that H and his witnesses who have been ordered to attend for cross-examination fail to do so. The Court has discretion whether or not to admit or exclude such affirmations from being used as evidence. It is said such discretion should be exercised in the light of all circumstances know to the Court at the trial, including the evidence of other witnesses (see HKCP 2014, 38/2/5, at p.763, Vol. 1). In the present case, I regard I should take into consideration the reasons for H’s refusal to give oral evidence at hearing dated 14 February 2014. H gave his reason in the said letter dated 13 February 2014. It is obvious that this is a tactical decision. If H’s position had remained as it was as at 14 February 2014, I might have come to the conclusion that it would work an injustice to W if H decided not to attend for cross-examination as a tactical move in his conduct of the ligation and in the circumstance the Court gave leave to H to use his affirmations as evidence. Today, Mr Yuen on behalf of H said H now wants to give oral evidence. Albeit it is solely for the purpose of making a reply to the assault on W on 14 February 2014, if H goes to the witness box, he can be cross-examined on any questions relevant to an issue in the disputes between the parties. However, Mr Yuen said, in order to enable H to attend, the hearing of W’s inter-parte application has to be adjourned for H is medically unfit to attend Court hearing for the time being. H’s application for adjournment is refused. The reasons for the refusal are set out in the above. It should be clear that that is a case management decision made with the view to ensure that W’s inter-parte application is dealt with as expeditiously as is reasonably practicable. To ensure fairness between the parties, it seems to me in the circumstance I should endeavour to dispose of the matter in the light of all evidence that have already been adduced in the proceedings. Therefore, I would allow H to use his affirmations as evidence.
22. I now embark on a discussion on the evidence. It is undisputed or indisputable that on 17, 18 and 20 November 2013, H and/or his agents made repeated attempts to enter W’s residence without invitation.
23. It is noted that W’s residence is not H’s residence. He lives in his own apartment. There can be no doubt that by (or after) 17 November 2013 that H must be aware that H was unwelcome with W having had to call the police and instructed the maids to tell H to stay away. As well, H’s suggestion that W “was hardly staying in the premises at all” is rejected by W. H does not live in the premises and cannot know from his own knowledge when W is there. W’s travel records also demonstrate that this allegation made by H is without any foundation
24. H said that he repeatedly broke into W’s residence because he has a “duty” to ensure the condition of the premises. I am not myself able to follow that suggestion.
25. H said on 17 November 2013, he broke the lock of the back door and entered W’s residence because he felt strange and was worried about the safety of the maids. One of the two maids inside the place at that time gave her description of what has happened in her Affirmation filed on 21 November 2013 as follows:-
(i) On that day at about 4:30 pm, H suddenly turned up outside W’s residence, rang the bell, and then knocked on and kicked at the front door fiercely. The maid was very scared and dared not open the door.
(ii) Having failed to get in through the front door, H later entered W’s residence by breaking in through the back door with the use of force and/or violence. She subsequently found that the back door and the lock thereof were damaged.
(iii) After entering through the back door, H angrily pointed at the maid and told her in a very loud voice to leave. She was very scared and said to H that as W was not at home she could not leave. H then shouted rudely to her.
(iv) After she refused to leave as demanded by H, she saw H making a telephone call. Two men known to H later came up, rang the door bell and H opened the door for them. H then asked one of those two men to tell her to leave. That person yelled at a loud voice, but she again refused to leave.
The maid stands ready to be cross-examined but H expressly declines to cross-examine her. As a practical matter, this can only mean that he cannot thus dispute her evidence. Looking at the evidence in the round, I prefer the maid’s description of what happened on 17 November 2013 and accordingly discard H’s claim that he broke into W’s residence on that day at about 4:30 pm because he was worried about the safety of the maids.
26. H said, on the morning of 18 November 2013, he was negotiating with Mr Poon of P Limited, his former employer, as he ceased to be a director of P Limited as from 16 September 2013. Mr Poon requested him and his family to render vacant possession of W’s residence as soon as practicable. He told Mr Poon H and W are in divorce proceedings and what had happened on 17 November 2013. Mr Poon decided to go to view the property and to arrange to repair the lock. He also wanted to explain the situation to W personally for the vacant possession of the property. So H arranged his driver to accompany Mr Poon. H was informed that when they arrived at the property on or around 2:30 pm that they approached the management office and was accompanied by them to approach W. His driver also accompanied Mr Poon. H said W could not have been scared of Mr Poon because W knew Mr Poon very well as Mr Poon provided her accommodation when she first came to Hong Kong and when she went to live in Canada for child birth. On the contrary, W said on 18 November 2013 at about 2:30 pm, two tall-built men came to her residence. They were accompanied by two officers from the management office of the building. As far as she knows one of them was Mr Poon, who is a good friend and business partner of H. Although they knew she is the wife of H, the two men spoke to her in a highly impolite manner. They said that they were there demanding her to supply them with the keys of her residence. She refused to give them the keys. She was very scared and did not really know what to do. She then asked them to leave and tried to close the door with the assistance of a maid. However, the two men tried to stop her and the maid from closing the door by using force. W then told them in unequivocal terms that she would report the matter to the police again if they refused to leave. She did report to the police and the police came thereafter. Thereupon the two men left. W stands ready to be cross-examined but H expressly declines to cross-examine her. Again, this must mean H cannot thus dispute her evidence. In my view, it is surprising for H to suggest that a landlord should personally visit a tenant in this manner for such purpose. As such, I find that the conduct of H and/or his agent on 18 November 2013 is unacceptable.
27. W said in the evening of 19 November 2013, from about 5:30 pm to 10:30 pm, H kept pestering her by making telephone calls and sending text messages to her mobile phone repeatedly. During the evening of 19 November 2013 at about 6:10 pm, H also asked the younger daughter to send her text messages requesting her to talk to H. H said W had by her solicitor’s letter dated 8 November 2013 stating that she welcome his contact to her and gave him her telephone number. The social welfare officer also advised him that he has to communicate with W. As the parties had a hearing on 25 November 2013 for an application regarding the younger daughter refusing to see the clinical psychologist and the youngest boy delaying the interim access until after 4 December 2013, his intention was to call W and discuss with her a consent order of the above as encouraged by the social welfare officer to minimize the pressure on the children. The younger daughter was very concerned so she herself sent a message to W. At or around 5:30 pm, H went to W’s residence with the younger daughter to see W upon the request of the younger daughter to ask W’s consent for not seeing the private clinical psychologist. The domestic helper opened the door for them but W was not there.
28. Notwithstanding that W had by her solicitor’s letter dated 8 November 2013 stating that she welcomes H’s contact with her and gave H her telephone number, it is clear that the letter provides W’s telephone number so that W and H can stay in contact in relation to the children’s matter. I do not accept H’s suggestion that the letter provided some type of permission for H’s unwelcome visits or breaking into W’s residence.
29. I also do not accept H’s suggestion that the social welfare officer’s advice somehow excuses H’s unacceptable behaviour.
30. W said in the morning of 20 November 2013 at about 8:15 am, H came up to W’s residence, rang the door bell and requested her to open the door for him. Given what had happened recently she did not open the door and reported the matter to the police. When the police arrived, H had already left. In the same morning at about 10 am, H came back to W’s residence again, this time accompanied by three men. H knocked on the door loudly and demanded her to open the door for him. She reported the matter to the police again. The police attended her residence, intervened and H left without coming into her residence. In the same morning at about 10:50 am, H came to her residence for the third time. W had already repaired the back door and lock after they were damaged by H on 17 November 2013 and had the lock of the front door changed. H used some instrument to break the door and the iron gate at the back entrance. She was very scared and did not know what to do. She therefore stayed in her bedroom and closed the door. H opened the door of her bedroom with the use of force and/or violence. W called the police again. H kept talking to her in a very loud voice. The police later attended her residence again and intervened. H subsequently left her residence. H tried to explain that he broke into W’s residence on 20 November 2013 because he required some documents urgently for a meeting. Given that by this time H had already broken into W’s residence on 17 November 2013, and sent Poon and another man to talk to her on 18 November 2013, the police having been called, I hold the view that it is unbelievable that H should visit W’s residence 3 times in a morning resulting in three more visits by the police so that H could obtain “documents for a meeting” on 20 November 2013.
31. Section 3 of the Ordinance provides:-
“(1) On an application by a person the District Court, if it is satisfied that the applicant or a specified minor has been molested by the spouse or former spouse of the applicant and subject to section 6, may grant an injunction containing any or all of the following provisions—
(a) a provision restraining the respondent from molesting the applicant;
(b) …
(c) a provision prohibiting the respondent—
(i) (where the applicant has been molested by the respondent) from entering or remaining in—
(A)the residence of the applicant;
(B)a specified part of the residence of the applicant; or
(C)a specified area whether or not the residence of the applicant is in that area,
whether or not the residence is the common residence or matrimonial home of the applicant and the respondent;
(ii) …
(d) …
(1A) A court may in an injunction containing a provision mentioned in subsection (1)(a) or (b) include a provision requiring the respondent to participate in any programme, approved by the Director of Social Welfare, that is aimed at changing the attitude and behaviour that lead to the granting of such injunction.
(2) In exercising its power to grant an injunction containing a provision mentioned in subsection (1)(c) or (d) the District Court shall have regard to the conduct of the parties, both in relation to each other and otherwise, to their respective needs and financial resources, to the needs of any specified minor and to all the circumstances.”
32. The Court is also empowered to attach an authorization of arrest under section 5 of the Ordinance:-
“(1)Where a court grants, pursuant to section 3, 3A or 3B, or pursuant to any other power upon an application made by a party to a marriage against the other party to the marriage, an injunction containing—
(a) a provision restraining any person from using violence against another person (“protected person”); or
(b) a provision prohibiting any person from entering or remaining in any premises or area,
the court may, subject to subsection (1A) and section 6, attach to the injunction an authorization of arrest in the prescribed form.
(1A) A court shall not attach under subsection (1) an authorization of arrest to an injunction granted against a person unless-
(a) it is satisfied that the person has caused actual bodily harm to the protected person; or
(b) it reasonably believes that the person will likely cause actual bodily harm to the protected person.
(1B) An authorization of arrest may be attached under subsection (1) to an injunction-
(a) at the time the injunction is granted; or
(b) at any time during the validity period of the injunction.
(2) Where under subsection (1) an authorization of arrest is attached to an injunction a police officer may arrest without warrant any person whom he reasonably suspects of being in breach of the injunction by reason of that person's use of violence or, as the case may be, his entry into or remaining in any premises or area specified in the injunction, and the police officer shall have all necessary powers including the power of entry by the use of reasonable force to effect that arrest.
(3) …
(4) …”
33. As to the duration of the order made by the Court, section 6 of the Ordinance provides:-
“(1) A provision mentioned in section 3(1)(c) or (d), 3A(4)(b) or (c) or 3B(1)(c) or (d) contained in an injunction granted under section 3, 3A or 3B shall have effect for a period, not exceeding 24 months, as the court considers appropriate.
(2) An authorization of arrest attached under section 5(1) to an injunction shall—
(a) have effect for a period, not exceeding 24 months, as the court considers appropriate; and
(b) expire upon the expiry of the validity period of the injunction.
(3) …”
34. The word “molest” is not defined in the Ordinance. It is not disputed that molestation is widely defined and may include behaviour far short of violence: Domestic and Cohabitation Relations Violence Ordinance, Cap. 189 (Annotated).
35. It is useful to refer to what Her Honour Judge Melloy said in P v C (Ouster and Domestic Violence) [2007] HKFLR 195 at 202:-
’22. Molestation has been defined widely and in the wife’s solicitors closing submissions I was referred in particular to the following definitions:
“… molestation may take place without the threat or use of physical violence and still be serious and inimical to mental and physical health” (Viscount Dilhorne in Davis v Johnson [1979] AC 264)
“It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court”. (Ormrod LJ in Horner v Horner [1982] Fam 90)
“Molest is a wide, plain word which I would be reluctant to define or paraphrase. If I had to find one synonym for it, I would select ‘pester’.” (Stephenson LJ in Vaughan v Vaughan [1973]3 All ER 449)
23. In Hong Kong “scolding” has been found to be sufficient for both a non-molestation and an ouster order. (See Chan Chun Hon v Chan Lam Lai Bing Shirley [1994] 3 HKC 196).
36. In addition, there usually has to be a form of intent.
“Harassment, it has to be said, of course, includes within it an element of intent, intent to cause distress or harm”. (Donaldson J in Johnson v Walton [1990] 1 FLR 350)”
37. As a result of H’s conduct, W has been under distress, anxieties and fear for her personal safety and that of the maids. She has been unable to sleep well and had to consult a psychiatrist. It is clear that H’s conduct calls for an imposition of non-molestation order.
38. Mr Whitehead contended given that repeated interventions by the police have been blatantly disregarded by H and escalating violent conduct is involved, this is an appropriate case for attaching an authorization of arrest.
39. Attaching an authorization of arrest is not to be taken lightly or to be treated as a routine matter: Horner v Horner [1982] 2 All ER 495. The power of arrest is to be used only in exceptional circumstances “where men and women persistently disobey injunctions and make nuisances of themselves to the other party and to others concerned”: Lewis v Lewis [1978] 1 All ER 729 at 731
40. Mr Whitehead did not dispute that throughout the incidents happened on 17, 18 and 20 November 2013, no actual bodily harm was caused to W. Despite that, Mr Whitehead contended that there could be 5 scenarios about who is the mastermind behind the assault on W dated 14 February 2014:-
(i) The assailant made a mistake. Therefore, it is impossible for the parties to the present proceedings to fathom who is the mastermind;
(ii) W staged the assault;
(iii) H himself did it;
(iv) Somehow H is complicit in the assault;
(v) Someone unwittingly did his boss i.e. H a “favour”.
41. Mr Whitehead accepted that scenarios (i) to (iii) are highly improbable but he contended on a balance of probability, it is either (iv) or (v). Although there is no evidence showing H’s complicity in the assault, he contested that no matter it is either scenario (iv) or (v), the Court has a duty to protect W by giving an order that an authorization to arrest is to be attached. I am not myself able to follow that contention. There is no evidence before this Court about who is behind the assault on W dated 14 February 2014. There shall be no authorization to arrest attached to the non-molestation order to be granted.
42. It is Ms Yip’s submission that the Court should discharge the ex-parte injunction with costs against W. As regards W’s inter-parte summons, Ms Yip asks the court to accept H’s undertaking in terms of paragraphs 1(a) and (b) of the Order dated 25 November 2013 and costs be in the cause. She asks the Court to discharge the ex-parte injunction on the grounds of
1) Material non-disclosure by W; and
2) Lack of urgency.
43. I deal with the ground (2) above first. On 17, 18 and 20 November 2013, H and/or his agents made repeated attempts to enter W’s residence without invitation. Police have had to be called 5 times to W’s residence in 4 days. W is entitled to the protection of the Court against H and/or his agent entering her residence. A Court order is always required in such circumstances. I do not agree that there is no urgency in the matter.
44. About the suggestion that there had been material non-disclosure by W in her ex-parte application dated 21 November 2013. Ms Yip lists the following “multiple and material non-disclosures”:-
(i) W did not disclose the video which captured what took place when H broke in W’s residence at about 10:50 am on 20 November 2013;
(ii) Further, she did not produce photos of the damage to the iron bar.
45. W produced the said video and photos in her 4th Affirmation filed on 23 November 2013.
46. Ms Yip also suggested that:-
(i) Mr Poon arrived at the property upon prior announcement being given to W to view the property with a view to carrying out repairs;
(ii) While W deposed on affirmation that when H broke the door, she “was very scared and did not really know what to do” and she therefore “stayed in [her] bedroom and closed the door”, in fact she was calm enough to ask the maid to hold the cell-phone to tape the process;
(iii) H did not use force and/or violence to open W’s bedroom door on 20 November 2013;
(iv) No electric saw was used. No sound of an electric saw could be detected by the said video.
(v) The transcripts of the hearing dated 21 November 2013 tell that the latest that W should produce the videos was when the court focused on the instrument which was used to gain entrance. It is most regrettable that W would hide the videos from the court, nor did she mention in her affirmation that she instructed her helper to tape the process. Neither did she frankly tell the court it was apparent from the damage of the iron bar that not an electric saw was used. Instead, she chose to mislead by confirming an electric saw was used.
(vi) The court should note from the photos which she took, that the damage caused to the iron bar, which bore uneven edges, could not have been caused by an electric saw.
47. It is noted that the matters list in the paragraph above as supporting the allegation of multiple and material non-disclosure by W are all fact-sensitive, and would have been the subject matter of cross-examination had H not aborted the hearing dated 14 February 2014.
48. It has been repeatedly suggested by Ms Yip that because W thought an electric saw had been used to break the door to her residence, when allegedly in fact it was an electric drill, is a material non-disclosure calling for the discharge of the ex-parte injunction Order and the payment by W of costs to H.
49. Ms Yip suggested that by looking at the photos of the damage to the iron bar, it is apparent that no electric saw was used. I have studied the said photos. I am not myself able to follow that suggestion. Indeed, Mr Whitehead told this Court that it appears from the photos that there was burnt mark at the top of the iron bar that was cut off from the iron gate of W’s residence and he wants to cross-exam H and the locksmith how an electric drill could burn off the iron bar from the iron gate.
50. In her 3rd Affirmation, which was used to support her ex-parte application, W said an “instrument” was used. In her 4th Affirmation dated 23 November 2013, W said, “From what I saw and heard through the peephole (before I went into my bedroom to hide myself) and the damage caused to the iron gate and iron bar, it was apparent to me at that time (and I still verily believe) that the instrument used by the Respondent or his agent was an electric saw. That is why I gave instruction to my instructing solicitors.”
51. Allied to her suggestions as set out in the paragraphs above, Ms Yip states that multiple aspects of W’s case are exaggerated, some consist of half truths, and others are vague and lacking in particulars. H has elected not to cross-examine W or her witness upon this matter. He further chooses not to call his witnesses to attend the hearing dated 14 February 2014 or today’s hearing. In view of H’s declining to cross-examine W at all, I agree with Mr Whitehead that this approach is no longer open to Ms Yip.
52. In Steven Gee Q.C., Commercial Injunctions, 5th ed., paragraph 9.020, p.257, in a discussion on effects of non-disclosure or material misrepresentation, it is stated:
“The principle should not be carried to extreme lengths, and it is important that the court should consider the practical realities of the case, and not allow the principle to be used as a refuge of last resort for litigants when the substantial merits of the case and the balance of convenience strongly favour maintaining the relief which has been granted, and when the likely consequences of setting aside the order could be very severe for the claimant. Such litigants should not be encouraged “to search ingeniously for facts” which might be viewed as relevant, in order to mount an application to discharge the order for non-disclosure.”
53. As Mr Whitehead submitted, whether it was an “electric drill” or an “electric saw” that W thought was being used during a frightening episode when people are trying to forcibly break into her apartment is really neither here nor there. At worst, and given the fraught circumstances in which this observation was made, W made a mistake. Notwithstanding Ms Yip’s ability of arguing to the contrary, I do not consider this is a matter meriting the discharge of the ex-parte non-molestation and injunction Order.
54. In conclusion, it is ordered that a non-molestation and injunction order in terms of the paragraph 1(a) and (b) of the Order dated 25 November 2013 be granted with penal notice be endorsed to the Order.
55. Ms Yip suggests that the usual costs order of an interlocutory injunction is costs in the cause. It may be true for civil cases where interlocutory injunction order such as a Marava injunction is granted as an ancillary relief to the main suit. In the present case, W’s application is made pursuant to the Ordinance. Costs should follow the event. Ms Yip draws the court’s attention to the fact that the original paragraph 1(b) sought by W, i.e. to restrain H from remaining within 250 metres of her or her residence was rejected by the Court. Despite that, I take the view that W is substantially successful in her ex-parte and inter-parte application. As far as I can see now, I consider H should pay W’s costs of the ex-parte and the inter-parte application, including all reserved costs. There shall be certificate for two Counsel. This is a costs order nisi, which becomes absolute 14 days after the date hereof unless a party has applied to vary the order within 14 days of the date hereof.
| | ( K K PANG ) |
| | Deputy District Judge |
Mr R Whitehead SC leading Mr E Yim instructed by M/S Lam & Lai for the Petitioner
Ms A Yip, Mr E Yuen and Ms Money Lo instructed by M/S Pansy Leung, Tang & Chau for the Respondent