Hsiao Cheng Liu v Hung Yuen Wong and Shuwai Wong and Yuyu Tsai

### Preamble
1
HH 314-13
HC 434/13
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HSIAO CHENG LIU

versus

HUNG YUEN WONG

and

SHUWAI WONG

and

YUYU TSOI

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 18 & 23 September 2013

E Samukange, for the plaintiff

Defendants in default

Application for default judgment

BERE J: The plaintiff is a businessmen and a director of a number of private companies operating in Zimbabwe, South Africa and Hong Kong.  For quite sometime he has been operating his various businesses in partnership with the defendants who are Chinese nationals.

As a result of representations made by the defendants against the plaintiff, the plaintiff was arrested and detained at Harare Central Police Station on false allegations of fraud involving US$70 million. The plaintiff was kept in unhygienic cells for two days which was followed by him being placed on remand on stringiest bail conditions.  The plaintiff’s arrest and detention occurred on 16 October 2012.  It was not until the 7th of January 2013 that the plaintiff regained his full liberty after his further remand was refused.

The plaintiff’s uncontroverted position was that as a businessman he operates in various countries which gives him an international posture.

For his malicious prosecution which was reported on the internet and in a number of international media the plaintiff issued out summons in this court claiming the following damages under different headings;

“ (a) USD25 million dollars for contumelia, deprivation of freedom and mental anguish,

(b) USD400 000 being costs reasonably incurred in defending himself.

(c) USD500 000 for loss of business during the period of arrest and subsequent       prosecution

USD35 million for defamation of character as a result of the false charges

Interest at the prescribed rate from date of issue of summons to date of payment in full, and

Costs of suit on attorney client scale”

Despite the nature of the claim the defendants did not defend the action hence the determination of this matter by way of default.

During brief submissions in court which were characterized by limited probing of the plaintiff’s counsel by the Court, counsel conceded that items under sub heading (b) and (c) must follow the pattern of special damages which must be properly proved and if need be documentary evidence tendered to justify such claims.  Counsel conceded that the papers as presented did not adequately lay bare the computation of these claims.

This whole case has been prompted by the malicious prosecution of the plaintiff which was as a result of the false allegations mounted against the plaintiff by the defendants.

I accept as argued by R.G Mckerron that sometimes claiming damages under different headings leads to improper splitting.  See also the case of Erik Masundire vs O.K Zimbabwe .

To avoid this improper splitting I propose to consider the claim for damages under one heading.

It will be noted that in the case of the matter of Retired Major General Happyton Bonyongwe vs Andrew Noel Cranswick the court considered an award of US$10 million to be fair and reasonable.

In Sawant Times Global Broadcasting Limited 2011 , a sum of 12,5 million pounds was awarded to a retired Supreme Court judge over a defamatory television broadcast.

In the instant case counsel for the plaintiff put up a brave argument in support of a global figure of US$70 million taking into account the unfair and unwarranted prosecution to which the plaintiff was subjected to as well as the humiliation this whole case bought on the plaintiff.

There is no doubt that the conduct of the defendants in conspiring to have the plaintiff prosecuted on false allegations was quite deplorable.  However, the amount suggested sounds to be on the high side.

Given the international posture of the plaintiff, and the harm the whole prosecution had on the plaintiff as articulated by the plaintiff through his affidavit of evidence one needs to lean on the remarks of Greenland J in the case of Masawi v Chabata where the learned judge summed it up as follows;

“As regards quantium it must be borne in mind that the primary object of the actio injuriarum is to punish the defendant by the infliction of a pecuniary penalty, payable to plaintiff as a solatium, for the injury to his feeling.  The court has to relate the moral blameworthiness of the wrongdoer to the inconvenience, physical discomfort and mental anguish suffered by the victim.”

In casu the plaintiff explained how malicious his prosecution which was instigated by the defendants was, how his reputation was affected including the dehumanizing effect of being dragged and thrown in the unhygienic conditions of Harare Central prison.

Bearing in mind the fact that the plaintiff had a name with some international flavour and being an international businessman who was unjustifiably detained and prosecuted, with the story being splashed in both the electronic and print media, I believe an amount of US$12 million dollars would be reasonable in the circumstances as damages for actio injuriarum.

In the result it is ordered that:

Judgment be and is hereby granted in favor of the plaintiff in the sum of US12 million, together with costs of suit against the defendants jointly and severally, the one paying the others to be absolved.

Interest thereon at the prescribed rate from 23 September 2013 to date of full payment.

Messrs Venturas & Samkange, applicant’s legal practitioners