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26 June 2018
In Capital Century Textile Co Ltd v Li Dianxiao(1) the High Court analysed the rationale behind the common law principle in Hollington v F Hewthorn & Co Ltd(2) when determining the admissibility of parts of an earlier judgment of a court in Beijing arising out of criminal proceedings. The court clarified that, under Hong Kong common law, the Hollington principle did not prevent the courts from admitting factual evidence (as opposed to judicial findings) referred to in an earlier judgment of another court or tribunal, provided that it is relevant to the civil proceedings in Hong Kong.
The first defendant was a former shareholder and director of the plaintiff (a company incorporated in Hong Kong) until 22 June 2009, when he purportedly transferred his shares to another director of the plaintiff.
Before the share transfer the first defendant allegedly acquired and subsequently disposed of a number of properties in Hong Kong at a profit. Most of the properties were allegedly acquired in his name. One of the properties was apparently initially acquired in the plaintiff's name but later transferred to the first defendant, who in turn allegedly transferred it to the second defendant. The second defendant appears to have been treated as the first defendant's adult son.
The plaintiff company claimed declarations as to the beneficial ownership of the properties on the basis that the money used to acquire them belonged to the plaintiff or the properties were held by the first defendant on trust for the plaintiff. With regard to the property allegedly transferred to the second defendant, the plaintiff company sought a declaration that he had held it pursuant to a constructive trust for the plaintiff.
The first defendant alleged that he was at all material times the beneficial owner of all of the shares in the plaintiff company, including those held in others' names – therefore, even if the plaintiff's allegations regarding the properties were true (so the argument went), the relevant transactions could be regarded as having been authorised or ratified by the plaintiff and its shareholders.
This argument was denied by the plaintiff, which claimed that the first defendant had held the shares registered in his name as a trustee of a state-owned company in Beijing, of which the first defendant was an employee. The plaintiff also claimed that the first defendant was appointed to be the shareholder and director of the plaintiff company and had acknowledged that the Beijing company retained full beneficial ownership of some of the properties.
By a judgment of the Second Intermediate People's Court in Beijing, dated 19 September 2010, the first defendant was convicted of corruption and sentenced to a term of imprisonment of 15 years from 29 August 2008 to 28 August 2023 (the period of the sentence accounting for the first defendant's detention before conviction). The first defendant has apparently been serving the sentence at a prison in Beijing since 29 August 2008.
The Beijing court's judgment contained (among other things) a summary of the factual evidence presented to the court (including references to the evidence of witnesses and the content of documents) and of the first defendant's alleged relationships with and positions in both the Beijing and plaintiff companies. In particular, the prosecution's case in the Beijing court proceedings appears to have been that the plaintiff company was set up by the first defendant on the instruction of the Beijing company. However, the corruption offence of which the first defendant was convicted concerned neither the plaintiff company nor the properties in dispute in the proceedings in Hong Kong.(3)
One of the issues before the court in the civil proceedings in Hong Kong concerned the admissibility of the earlier judgment of the Beijing court. That judgment contained the court's verdict, certain judicial findings and a summary of the factual evidence presented to it. The second defendant, on the first defendant's behalf and in his own right, sought to have the judgment of the Beijing court excluded from the evidence at the trial in Hong Kong on the basis that it was inadmissible or irrelevant.
The court began its analysis by considering the principle in Hollington – namely, that conclusions and factual findings in the judgment of another court or tribunal in earlier proceedings, whether civil or criminal, are inadmissible in subsequent proceedings, except for a certain kind of estoppel. However, the court noted that the Hollington principle, although not overruled, was the subject of some controversy.
The court then considered the deliberations of the first instance and appeal judges concerning the Hollington principle in the more recent English case Rogers v Hoyle,(4) noting that:
It was noted that the judgment of the Beijing court contained not only the court's verdicts on the charges against the first defendant and the facts supporting them, but also a summary of the factual evidence presented (including the witness statements and certain documents). Some of the contents of the witness statements in the Beijing court proceedings dealt with the first defendant's alleged relationships with and positions in the Beijing and plaintiff companies and appeared to contradict parts of his defence.
The court also considered the rule concerning the admissibility of hearsay and, on the facts, did not consider that it provided any basis for contesting the admissibility of the summary of the evidence in the judgment of the Beijing court. The weight to be attached to that evidence was a matter for trial.
The court concluded that the statements of the factual evidence in the judgment of the Beijing court should not be excluded by the operation of the Hollington principle to the extent that they were relevant to the proceedings in Hong Kong. The court also considered that the trial judge could review the entire judgment of the Beijing court and disregard any parts which it considered inadmissible – in the court's opinion, that exercise was best done at trial.
Many dispute resolution lawyers in Hong Kong are familiar with civil proceedings in Hong Kong involving Chinese state-owned interests. This case involves a good example of how some state-owned companies in China structure their businesses in Hong Kong by establishing a Hong Kong company of which the Chinese company's employee is appointed a shareholder, director or both. As the Hong Kong company is effectively controlled by the individual, the Chinese company can encounter obstacles when seeking to retrieve assets in Hong Kong – for example, some or all of those assets could be disposed of by the individual concerned through the Hong Kong company.
In attempting to gather evidence of an individual's alleged transgressions, a common problem is the difficulty in obtaining relevant evidence (especially witness statements) where witnesses are not in Hong Kong or – assuming that they can be located – are not able or willing to testify in court proceedings in Hong Kong.(5) The judgment in this case should be well-received by parties and their legal representatives who intend to use the earlier judgment of a court or tribunal in another jurisdiction in civil proceedings in Hong Kong, especially where that judgment contains a useful summary of relevant evidence which would otherwise be difficult to obtain.(6)
Further, in exercising a case management discretion to determine at trial which parts of the Beijing court's judgment should be admissible, the Hong Kong court was keeping its options open. The reality may sometimes be that the extent to which a trial court in Hong Kong considers the judgment of a court of another jurisdiction could be influenced by the seniority of that court and the degree to which the overall evidence suggests egregious conduct on the part of a party.
However, it should be noted that a trial court has a duty to ensure a fair trial – therefore, it will be reluctant to admit as evidence at trial those parts of the judgment of another court or tribunal which contain conclusions or findings on factual matters, or which contain evidence that is irrelevant to the issues being tried in the subsequent proceedings.
For further information on this topic please contact David Smyth or Milo Qin at RPC by telephone (+852 2216 7000) or email (firstname.lastname@example.org or email@example.com). The RPC website can be accessed at www.rpc.co.uk.
(5) The judgment of the court is also another recent example of the court's general reluctance to adjourn a trial date, save in exceptional circumstances (for further details please see "Absence from trial ill-advised"). See also Sun Hing Cheong Textile Ltd v Chan Wai Ming ( HKCFI 765) and Ho Shan Shan v Fung Chiu Ling ( HKCFI 964).
(6) For example, letters of request and bilateral arrangements for taking evidence in cross-border or cross-boundary disputes can have their limitations (for further details please see "Obtaining evidence in cross-border civil proceedings").
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