HORST JOACHIM FRANZ GEICKE v. I-ONASIA LTD AND OTHERS

HCA 2379/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2379 OF 2009

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BETWEEN

HORST JOACHIM FRANZ GEICKE Plaintiff

and

I‑ONASIA LIMITED 1st Defendant
DEREK RICHARD JOSEPH ELMER 2nd Defendant
alias DEREK ANDREWS
JOSEPH MA 3rd Defenant
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Before : Hon Yam J in Chambers

Date of Hearing : 1 February 2012

Date of Judgment : 1 February 2012

Date of Handing Down Reasons for Judgment : 13 March 2012

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REASONS FOR JUDGMENT

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Background

1. On 26 November 2009, the plaintiff by way of ex‑parte application obtained an injunction against the 3 defendants restraining them from assaulting, molesting, harassing, threatening,communicating or otherwise interfering with the plaintiff and his two children within the vicinity of the plaintiff’s home or anyother place in any manner whatsoever. By the return date on 4 December 2009, the 3 defendants gave an undertaking in lieu of theaforesaid injunction order to the same effects.

The Application

2. 2 years later on 6 December 2011, the defendants applied to be discharged from their undertaking given by them as aforesaid.

3. The main ground of the application is that they had obtained new evidence that they had never, in the course of the surveillancebusiness at the instructions of the plaintiff’s wife, committed any of the aforesaid acts in respect of the plaintiff or his twochildren. The new evidence they obtained was the CCTV footage in the evening of 20 November 2009 at the lobby of the plaintiff’shome.

4. The Video recording was shown to the Court. However, as there was no audio recording, the video recording shows two parties wereconfronting each other but what the parties said was not clear.

5. I accept the submission of Counsel for the plaintiff that there was no “significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, and found out,in time for the first encounter”. Further “there has been no change in the potential ability of the defendants to resist the plaintiff’s motion successfully, sufficient tojustify a court in discharging or modifying the undertakings which the defendants then offered and gave.” (See Chanel Ltd v Woolworth Co [1981] 1 WLR 485 at 492H‑493B per Buckley LJ).

6. The defendants, being in the surveillance business, should have known that CCTV was installed at the lobby. They could have askedfor the CCTV footage before they gave their undertaking. Although they complained that it took them quite some time to obtain thefootage, they could have asked for an adjournment on the return date and file affidavit to contest the application. Instead theyvoluntarily gave the undertaking without any application for an adjournment. They should not be allowed, on this piece of inconclusiveevidence adduced, to be released from their undertaking.

Further ground

7. There was an incidental ground relied on by the defendants and that is the plaintiff’s solicitor’s letter dated 17 May 2011in which it was said that the plaintiff is not interested to proceed with the action. Reading the correspondences as a whole, thiswas just a desire to settle the case as soon as possible and not to proceed if they should manage to reach a settlement. Howeverit was the plaintiff’s wife who actually funded the defendants in this case and she was not willing to settle. I do not find thecorrespondences show that the plaintiff intend to warehouse this action. In any event the defendants could have proceeded to trial.

8. For the aforesaid reasons the defendants’ application was dismissed with costs to the plaintiff. Costs shall be taxed on commonfund basis, if not agreed, and paid forthwith. Here I also accept the submissions of Mr John Scott SC for the plaintiff that thisapplication should not have been taken out on the inconclusive evidence adduced under the disguise of new evidence coming to light.

(D. Yam)
Judge of the Court of First Instance
High Court

Mr John Scott SC, instructed by Robertsons, for the plaintiff

Mr Roger Beresford, instructed by Oldham, Li & Nie, for the 1st to 3rd defendatns