Sun v He

[2020] NSWSC 802

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Sun v He [2020] NSWSC 802

Hearing dates:

12-13 May 2020

Date of orders:

26 June 2020

Decision date:

26 June 2020

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

1.   Declare that the first defendant was in contempt of this Court by engaging in the conduct in the circumstances described in each of Charges 1, 2, 3 and 4 of the Statement of Charge annexed to the plaintiff’s notice of motion filed on 18 February 2020.

2.   List the matter before me at 8.30am on 30 June 2020 for further directions as to the filing of evidence and listing of the matter for a sentencing hearing in respect of the contempt of court committed by the first defendant.

3.   Reserve the question of costs.

Catchwords:

CONTEMPT — Criminal contempt — Intentional conduct — Interference with administration of justice — where deliberate and intentional destruction of items subject to search and seizure orders — where other contemptuous conduct

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Anderson v Hassett [2007] NSWSC 1310

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27

British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197

Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673

Clark v State of New South Wales [2012] NSWCA 139

Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322

Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303

Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245; [1981] HCA 35

Mead v Mead [2007] HCA 25; (2007) 235 ALR 197

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046

Moody Kiddell & Partners Pty Ltd v Arkell [2013] FCA 1066

Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523; [2012] NSWCA 182

Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264

Perera v GetSwift Ltd (2018) 263 FCR 92; [2018] FCAFC 202

Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42

Shepherd v The Queen [1990] 170 CLR 573; [1990] HCA 56

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Category:

Procedural and other rulings

Parties:

Bo Sun (Plaintiff)
Xin He aka Ethan He (First Defendant)
Third Master Capital Pty Ltd (ACN 622
150 369) (Second Defendant)
Level 24 Holdings Pty Ltd (ACN 622 146 490) (Third Defendant)
Fourth Master Capital Pty Ltd (ACN 622 745 420) (Fourth Defendant)
Ethan He and Vivian Zhang Pty Ltd (ACN 169 451 718) (Ninth Defendant)
Second Master Capital Pty Ltd (ACN 622 077 696) (Thirteenth Defendant)
Lei Zhang (Fourteenth Defendant)
EVE Property Solutions Pty Ltd (ACN 155 290 958) (Fifteenth Defendant)

Representation:

Counsel:
M Pesman SC with T Bors (Plaintiff)
R de Meyrick with D Currie (Defendants)

Solicitors:
Colin Biggers & Paisley Pty Ltd (Plaintiff)
Link Lawyers (Defendants)

File Number(s):

2019/00071078

Publication restriction:

Nil

Judgment

1. HER HONOUR: Before me for hearing on 12 and 13 May 2020 were two notices of motion filed by the plaintiff (Mr Bo Sun, who is also known as Michael): first, a notice of motion filed on 11 February 2020, seeking inter alia that some or all of the defence (filed on 17 May 2019) of the first to fourth, ninth and thirteenth to fifteenth defendants (the He Defendants) be struck out (the Strike Out Motion); and, second, a notice of motion filed on 18 February 2020, seeking inter alia findings of contempt against the first defendant (Mr Xin He) in relation to the execution on 22 November 2019 of search orders (the Search Order) made by Lindsay J on 21 November 2019 (the Contempt Motion). In both motions, costs are sought by the plaintiff.

2. The He Defendants are Mr He (who is also known as Ethan), his wife, Ms Lei Zhang (who is also known as Vivian), and six companies controlled by Mr He that hold assets claimed by Mr Sun.

3. There was also listed before me at that time a notice of motion filed on 21 February 2020 by Mr He (and the He Defendants), seeking a variation of the existing freezing orders such that the amount they may expend on legal costs be increased to $500,000. Although written submissions were filed in relation to this motion, it was the position of Mr Sun (the logic of which was conceded by Mr He and the He Defendants) that this motion should be determined after the outcome was known of the Contempt Motion (and any sentencing for contempt if that be the outcome of that motion) (see T 48.5). In that respect, I pause to note that there had been agreement reached between the parties for Mr He to have access to a sum of $50,000 for costs in relation to the present applications.

4. For completeness, I note that a notice of motion has also been filed by Mr Sun on 17 March 2020, seeking a variation of the freezing orders to reduce the amount that Mr He and his wife may spend on living expenses. However, that notice of motion was not listed before me for hearing on 12 and 13 May 2020 and Mr Sun did not seek to move on it at this time (not least because it, too, may not arise if the relief sought on the Contempt Motion is granted).

5. Broadly, the complaint by Mr Sun (precipitating both the Strike Out Motion and the Contempt Motion) is that, in the course of the execution of the Search Order at Mr He’s residential premises in Warrawee (the Warrawee premises) on 22 November 2019, Mr He deliberately destroyed electronic records the subject of the Search Order.

6. The Search Order was made in the context where a critical issue in these proceedings had been identified as being which of two versions of certain “WeChat” conversations between Mr Sun and Mr He should be accepted (each of Mr Sun and Mr He suggesting, in effect, that the other has doctored his records of those conversations). WeChat, I am told, is a messaging, social media and payment system popular in China.

7. Pausing here, the operation of WeChat was described in evidence by the plaintiff’s computer expert (Mr Bell) as follows (T 38.3–.30):

A.   … they sort of exist within their own world, if you like, so an SMS is functionality that exists on a mobile phone ordinarily facilitated by the carrier of that phone, Telstra, Optus, et cetera; the WeChat functionality sits within an application called WeChat which is installed on a phone, and requires either access to the internet or the use of the data services of the mobile phone carrier, 4G for example, in order to be able to then use the application.  But in terms of the way that it works by sending and receiving chats, pictures, et cetera, that process is akin to SMS functionality.

Q.   If I understand that correctly, unlike a text, which is often delivered over the phone network as a functionality of the phone provider, such as Telstra, Vodafone, etcetera, a WeChat message is a strictly internet based message only, and your phone may use its internet connection to send it, but it’s not going through the telephone system as such, or your particular provider?

A.   In essence, its use is being governed by the application called WeChat, which is installed on the phone, so it will leverage the functionality of the phone, but it sort of operates in its own world, if that makes sense, which is that WeChat world and that application that is installed on each phone in order for people to be able to communicate with one another within that application.

Q.   Some of the messages can be also little audio files; is that right?

A.   Yeah, WeChat provides the functionality to write text in a message, photos, and record audio messages where you essentially speak or dictate into your phone and then send that audio file to a recipient.

Q.   And that is not converted to text, simply at the other end someone clicks on it and they hear the person speaking; is that right?

A.   Correct.

8. It is contended for Mr Sun that the resolution of the question as to who doctored the evidence will in essence be determinative of the litigation (see at T 5.7). Mr He, however, does not accept that the determination of what I might refer to as the “WeChat issue” will necessarily be dispositive.

9. Mr Sun contends that Mr He (by deleting the electronic records and by virtue of other conduct during the execution of the Search Order) is guilty of contempt (as charged in the Contempt Motion) and maintains that the pleadings of Mr He, and his related entities, ought be struck out. In the alternative, as a “fallback”, Mr Sun contends that those parts of the affidavits of Mr He and the He Defendants which rely upon the disputed WeChat conversations ought be struck out and otherwise there should be limitations ordered on the extent to which Mr He and the He Defendants may rely on evidence relating to that issue.

10. There is no dispute that Mr He did deliberately delete a large amount of electronic data from a number of devices after service of the Search Order on him (although he does dispute having deleted data from one particular device – an Apple iPhone X). However, in effect, Mr He contends that he was unaware at the relevant time of the content of the Search Order (or, indeed, that it was a search order) and he proffers an innocent explanation for the deletion of the electronic data (in substance, that he did so to protect his privacy and avoid embarrassment).

11. For the reasons that follow, I have concluded (applying the criminal standard of proof) that Mr He is guilty of the contempts with which he has been charged. I will therefore list the matter for a sentence hearing and make directions for the filing of any further evidence on which Mr He wishes to rely for that hearing. Directions in relation to the other extant notices of motion will await the outcome of that sentence hearing.

Background

12. These proceedings were commenced by Mr Sun by summons filed in Court on 5 March 2019 on an ex parte application for freezing orders against Mr He and related entities (which orders have been extended and varied from time to time since then). A statement of claim was filed by Mr Sun on 15 April 2019. The He Defendants filed their defence to that statement of claim on 15 May 2019.

13. In the proceedings, Mr Sun has alleged (at [20] of the statement of claim) that he provided Mr He with sums totalling $80,113,752.04 to invest on his behalf in Australia and that approximately $20 million of that amount has been misappropriated by Mr He (against whom serious allegations of fraud are made). In particular, the sum of $19,310,000 is the amount said to have been misappropriated by Mr He in cash (see at [56] of the statement of claim); the balance of the approximately $80 million claimed in the proceedings against the defendants is in respect of properties which it is alleged are held by Mr He’s related companies on trust for Mr Sun (see the relief sought in prayers 1 and 4 of the statement of claim). This is relevant to note at the outset since, in submissions on the present application, it was put for Mr He that the allegations made against him had “significantly collapsed” since the proceedings were commenced (on the basis that that Mr Sun’s own submissions (see at [12] in support of his motion) acknowledged that the allegation of misappropriation by Mr He was approximately $20 million – not $80 million). However, Senior Counsel for Mr Sun made very clear that what is sought against the defendants remains the whole of the sum provided by Mr Sun for investment (i.e., the amount of around $80 million) that is claimed in the pleading (see T 3.3-6): around $60 million from the companies in the form of the property and around $20 million from Mr He (see T 2.5ff).

14. There seems little doubt that the proceedings will involve the analysis of a large number of financial and property transactions between the parties, involving considerable sums of money. Mr He in his defence admits (at [16]) to the receipt of $60,836,824 for the purpose of investment but, broadly, says (at [18]) that $19,206,927 of the amount received was in fact a loan to him from his family in China (and therefore not Mr Sun’s money). Mr He has also filed a cross-claim, alleging that Mr Sun is indebted to the defendants in a sum of approximately $5 million and with some “rental” payments continuing to accrue.

15. As adverted to above, what emerged in the course of the filing of affidavit evidence in the proceedings was a material discrepancy between the records put into evidence by each of Mr He and Mr Sun as to certain WeChat discussions between them.

16. Specifically, a comparison between the respective versions of the disputed WeChat conversations over the relevant period indicates that on Mr He’s version of various conversations there were additional messages between the two gentlemen (interleaved, so to speak, between the messages as they appear on Mr Sun’s mobile phone).

17. Mr Sun’s evidence is that he kept the mobile phones used in, or for, at least some of those WeChat messages. Those devices have been forensically examined by Mr Shane Bell (a forensic computer expert, being a certified computer examiner, from McGrathNichol Advisory), whose report dated 21 November 2019 was relied upon when the application was made before Lindsay J for the Search Order in the first place.

18. Meanwhile, Mr He’s evidence is that he took screenshots of the messages. In his affidavit of 29 October 2019, Mr He has deposed (at [30]) that he did not retain a full WeChat message history because he upgraded his mobile telephone device on a regular basis and he deleted his messages regularly. Mr He says he no longer has the mobile telephone devices with WeChat history prior to 9 October 2017. As indicated above, the screenshots that Mr He has put in evidence contain numerous additional entries to the messages as they appear on Mr Sun’s mobile telephone.

19. Thus, it is said that the inescapable conclusion is that either Mr Sun or Mr He has produced records that have been “doctored”; and hence the significance attributed by Mr Sun to the destruction of the electronic records by Mr He.

20. As adverted to above, on 21 November 2019, Lindsay J made the Search Order.

21. Schedule “A” to the Search Order relevantly identified the premises to be searched (which included what is not disputed to be Mr He’s home address in Warrawee). Schedule “A” also listed the things the subject of the search, which included (in item 1) any documents, records, screenshots and electronic data and metadata:

… containing, relating to, used by, created by or in consequence of the transmission of, any communications between the Plaintiff and First Defendant [Mr He] by way of the “WeChat” and/or “Whatsapp” and/or any other communications applications and services between January 2016 and January 2019.

22. Item 2 in Schedule “A” listed: any electronic devices (including without limitation computers, laptops, tablets, digital mobile telephones and smartphones) (item 2(i)); storage devices (including without limitation USB drives, hard drives, SD cards and micro SD cards) (item 2(ii)); and any “iCloud” or other web-based storage services (item 2(iii)):

… such as may contain any documents, records, spreadsheets, screen shots, electronic data and metadata relating to, used by, created by or in consequence of the transmission of any communications between the Plaintiff and the First Defendant [Mr He] by way of the “WeChat” and/or “Whatsapp” and/or any other communications applications and services between January 2016 and January 2019.

23. Schedule “A” to the Search Order identified the search party as: an independent solicitor, Mr Stuart Blaxell; the applicant’s solicitor, Mr Douglas Prime; Ms Leanne Balit, in the capacity of independent computer expert; and Ms Fang “Sandy” Shi, in the capacity of English/Mandarin translator.

24. The Search Order obliged Mr He to permit members of the search party to enter the premises so that they could carry out the search and other activities referred to in the order (see at [8]) and obliged Mr He to permit certain things to happen, including to permit the independent solicitor to remove from the premises and into his custody the listed things “or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things”. It also obliged Mr He to disclose certain matters to the search party members and to do all things necessary to enable them to access the listed things, including by providing them with all necessary passwords (see [9]).

25. It is relevant here to note that (in accordance with the standard form search order), although (by [12]) Mr He was in effect allowed a period not exceeding two hours (subject to extension) from service of the Search Order to obtain legal advice and/or to seek to vary or discharge the Search Order, Mr He was required (under the terms of the Search Order) immediately to provide access to the premises to Mr Blaxell.

26. I interpose to note that it is contended, for Mr Sun, that it is unarguable that this aspect of the Search Order was contravened shortly after service and, certainly, it cannot be disputed that Mr He refused to allow Mr Blaxell (or, for that matter, anyone else in the search party) access to the Warrawee premises for about three hours after he was served with the Search Order (see the chronology of events set out below). Mr He, however, disputes that this breach amounts to contempt, for the reasons that I will consider in due course.

27. The Search Order also provided that during any period referred to in [12] of the order, Mr He was obliged, inter alia, not to disturb or remove any listed things (see at [14]).

28. The Search Order also provided (at [26]) that:

1. Until 4:30pm on the return day you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court.

   29. As adverted to, a detailed chronology of the events that occurred during the execution of the Search Order on 22 November 2019 is set out in due course, as are the findings of fact that I have made in relation to various disputed aspects of those events.

   30. It is sufficient for present purposes to note that (as adverted to above) Mr He did not immediately allow access to the Warrawee premises after he was served with the Search Order. Instead, Mr He contacted his solicitor (Mr Terry Leung) and Counsel (Mr Rohan de Meyrick) and an application was (unsuccessfully) made to Lindsay J on Mr He’s behalf at about 12.45pm that day to vary or discharge the Search Order.

   31. Pausing here, Mr Sun notes that there was no appeal from the decision of Lindsay J not to vary or discharge the Search Order, nor was any further application made by Mr He in relation to the Search Order; such that the matter here proceeds on the basis that the Search Order was properly obtained (see T 7.50).

   32. After obtaining legal advice, and after the unsuccessful application to vary or discharge the Search Order, Mr He did permit the search party to enter the Warrawee premises (at about 1.20pm).

   33. There is a dispute as to some aspects of what then occurred, relevantly including as to whether (as Ms Balit has deposed) Mr He carried out a “factory reset” of a mobile phone that was located on the premises during the search (an Apple iPhone X) in the presence of Ms Balit.

   34. There is also a dispute as to whether Mr He complied with other obligations under the Search Order, including his obligation to provide all passwords to enable access to the devices (a breach said to be continuing and to amount to a continuing unpurged contempt).

   35. However, what is not disputed is that, before Mr He permitted the search party access to the Warrawee premises, Mr He deliberately deleted a considerable amount of electronic material on various of his electronic devices (his Huawei Mate Pro 20 mobile telephone device, an Apple iMac computer and an Apple iPad Pro). As indicated above, there are, relevantly, four devices the subject of the present complaint: the Huawei Mate Pro 20 mobile telephone (which Mr He admits he “factory reset” after the Search Order was served); an Apple iPad Pro (which Mr He also admits that he “factory reset” after the Search Order was served, although there is some dispute about precisely when that happened); an Apple iMac computer (from which Mr He deleted eight gigabytes of data after the Search Order was served); and the Apple iPhone X (that, on Mr Sun’s case, was “factory reset” by Mr He in the presence of the independent computer expert, Ms Balit). Mr He denies that he effected this reset in Ms Balit’s presence but it is not disputed that the telephone was in fact “factory reset” (Mr He’s explanation for this – as to which see below – seems to be that this must have happened automatically as a result of an earlier “factory reset” that had not yet occurred while the device was not charged).

   36. After the execution of the Search Order, Mr Sun’s legal representatives on a number of occasions requested production by Mr He of the original WeChat records. The response from Mr He’s solicitors was that they were instructed by their client that “the screenshot backup are held with an entity in China” and that time would be required for their “retrieval”. As at 2 December 2019, it was said by his lawyers that Mr He had attempted to contact his technician but had not yet been able to reach him. This assumes some significance in the context of the non-production of such documents in answer to two successive notices to produce; and the provision of screenshots of the messages by Mr He to an expert he says he located on Google (Mr Jarrett Le Roux) without first involving his legal representative in that exercise. Mr He says that this was for cost reasons. Meanwhile, Mr Sun submits that a more sinister motive should be attributed to Mr He – namely, that Mr He first wanted to ascertain if anything incriminating would be revealed from such an inspection.

Evidence

37. Mr Sun relies on the following evidence: an affidavit affirmed on 21 November 2019 by his solicitor, Mr James Andrew Neal, deposing to the execution of the Search Order and the different versions of the WeChat conversations in Mr Sun’s and Mr He’s respective affidavits; affidavits affirmed on 27 November 2019, 31 January 2020 and 9 April 2020 by Mr Blaxell, deposing to the execution of the Search Order and as to the subsequent regime for examination of the electronic and other records obtained (and annexing his independent solicitor’s report to the Court); affidavits affirmed on 18 February 2020 and 5 May 2020 by Ms Balit, deposing to the execution of the Search Order and her later examination of the electronic devices and records obtained pursuant to them (and annexing her independent computer expert’s report to the Court); and affidavits affirmed on 21 November 2019 and 4 May 2020 by Mr Bell, the forensic computer expert retained by Mr Sun.

38. In addition, Mr Sun tendered at the hearing of the present applications: the transcript of the hearing on 22 November 2019 before Lindsay J (Exhibit G) and records produced under subpoena by Vodafone Australia (Vodafone) showing the telephone calls made between Mr He and his lawyers during execution of the Search Order on 22 November 2019 (Exhibit F). Also tendered by Mr Sun (Exhibit H) was a notice to produce that had been issued to Mr He, seeking communications between Mr He and someone referred to by him in his affidavit evidence as a “technician friend” in China (in answer to which no documents were produced). Mr Sun also relied on an affidavit affirmed on 17 March 2019 by his solicitor, Mr Neal, in the context of the earlier freezing order application; and tendered (Exhibit B) an affidavit affirmed by Mr Sun on 19 November 2019 (as evidence of what was before Lindsay J on the application for the Search Order).

39. Mr He relied upon two affidavits affirmed by him (on 21 February 2020 and 27 March 2020); two affidavits affirmed on 8 April 2020 by a forensic expert retained by him, Mr Jarrett Le Roux, annexing reports as to his examination of the screenshots and his comments in relation to Mr Bell’s report; and an affidavit affirmed on 21 February 2020 by his solicitor, Mr Leung, in relation to the application (yet to be determined) to vary the freezing orders.

Chronology of events on execution of the Search Order

40. From their respective affidavits, there emerged substantial disagreement between Mr He, on the one hand, and Mr Blaxell and Ms Balit, on the other hand, as to the events occurring during the execution of the Search Order. It is necessary, since this is critical to the disposition of the Contempt Motion, to consider in some detail the chronology of events in this regard, to which I now turn. For ease of reference, I have emboldened the time line references.

41. As noted above, the Search Order was made on 21 November 2019 and executed on 22 November 2019.

42. In Mr Blaxell’s report to the Court as independent solicitor (Annexure A to his affidavit affirmed on 27 November 2019), Mr Blaxell reports that at 9.20am on 22 November 2019 he briefed the search team at a café in Warrawee (see [4] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019).

43. Mr Blaxell reports (see at [5]-[6] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019) that: he arrived at the Warrawee premises at 10.10am; the front gate was locked; he rang the doorbell; Mr He approached the front gate; Mr Blaxell served Mr He with the Search Order and additional documents (being the accompanying motion and affidavits, which it is accepted comprised some four lever arch folders); and Mr He placed the additional documents on the right hand side of the path from his house to the front gate.

44. Mr He admits (see his affidavit affirmed on 27 March 2020 at [34] and [42]) that he placed the additional documents to the side of the front gate. There is a disparity in the evidence of Mr Blaxell and Mr He as to whether Mr He took the Search Order with him when he went back into the house (see below).

45. Mr Blaxell has deposed (see [6] of Mr Blaxell’s affidavit affirmed on 9 April 2020) that he said to Mr He words to the effect:

I am a solicitor of the Supreme Court. I am here to serve on you an Order made by the Supreme Court for the searching and seizure of documents and electronic devices at your house and I am an independent solicitor appointed by the Court to represent the Court and to ensure that the search is carried out properly.

46. Mr Blaxell has further deposed (see [7] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019) that he emphasised that the Search Order was a “very serious matter” and that he read to Mr He the Penal Notice appearing (in bold) on the front page of Search Order.

47. Specifically, the Penal Notice read as follows:

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)   REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR

(B)   DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

48. Mr Blaxell, in cross-examination (see below), said that he made the “point” about destruction of documents or things “more than once” (see T 19.14-15). His evidence was that he explained “my identity, my role and the purpose of the attendance” clearly to Mr He (T 19.23). Mr Blaxell did not accept (T 19.29) that Mr He was confused and upset (“Confused I wouldn’t say, no”), although he accepted that that Mr He was “to a degree, not overly” flustered and upset by his presence (T 19.19).

49. Mr Blaxell reported that Mr He started reading the Search Order in Mr Blaxell’s presence (see [8] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019); that he (Mr Blaxell) offered to explain the Search Order (see [8] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019); and that he again emphasised that he was an independent solicitor authorised by the Supreme Court of New South Wales to supervise the search and seizure of documents, objects and devices from his property (see [6], [8] of Mr Blaxell’s affidavit affirmed on 9 April 2020).

50. Mr Blaxell has reported (see [9] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019; [6] of Mr Blaxell’s affidavit affirmed on 9 April 2020) that, after Mr He had read perhaps four or five pages of the Search Order, Mr He said words to the effect that:

It is too much for me. I have to talk to my solicitor and will not let you in until I have spoken with him.

51. Mr Blaxell has reported that: he offered to Mr He his own mobile telephone for Mr He to call his solicitor; again emphasised to Mr He that he would be happy to explain the effect of the Search Order; told Mr He that he was required to permit him entry while Mr He took legal advice; and informed Mr He that the terms of the Search Order did not permit him to speak to anyone other than his legal advisers and (significantly for present purposes) that he must not disturb or destroy any document or thing covered by the Order in the meantime (see [9] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019).

52. Mr Blaxell’s evidence is that Mr He declined the offer of use of Mr Blaxell’s mobile telephone (and Mr Blaxell’s offer to explain the Search Order). Mr Blaxell reports that Mr He went inside the house and left Mr Blaxell and Ms Shi (and also, presumably, Ms Balit and Mr Prime) at the locked front gate (see [6], [9] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019; [6] of Mr Blaxell’s affidavit affirmed on 9 April 2020).

53. Pausing here, Mr He (in his affidavit affirmed on 27 March 2020 at [38]) agrees that Mr Blaxell said words to the effect that these were “you have to let me come in now”. Mr He has given various explanations for not letting Mr Blaxell (or, indeed, any member of the search party) into the house before around 1.20pm on 22 November 2019 (see [32]-[41] of Mr He’s affidavit affirmed on 27 March 2020; T 53.35-T 56.2).

54. In summary, Mr He says that he had a bad experience earlier (in March 2019) when private investigators were stalking him and his family (it was suggested to him in cross-examination, which he did not accept, that this was at the time that Mr Sun had been attempting to serve documents on him in March 2019: see T 53.7-28); that his parents-in-law were old with medical conditions; that he did not know that people could come to his house and get access; and that he grew up in China and that (at [40] of Mr He’s affidavit affirmed on 27 March 2020):

When government officials turn up to your house, you may never be seen again … In China people pretend to be officials or police and are actually robbers.

55. Mr He’s evidence is that he only took a “quick look” at the Search Order at that time (see Mr He’s affidavit affirmed on 27 March 2020 at [37]) and that he noticed that he could apply to the Court at any time to vary or discharge the order. He has deposed that he and Mr Blaxell were talking over the top of each other; and that he did not know the content of the Search Order.

56. Pausing here, I note that the Search Order was in standard form with emboldened warnings on the front page (the bulk but not all of which is extracted above). The reference to an ability to apply to the Court to vary or discharge the order (see at [12](b)) appears on page four of the Search Order and is in smaller font and not emboldened. To my mind, it is implausible that anyone reading the document (even quickly or with only a cursory view) would focus solely on that later paragraph and ignore (or not perceive) the emboldened words. While I accept that it may be that, having read or skimmed the order or the first few pages of the order, one might then focus on was what could be done to vary or discharge the order, it is inconceivable that a reasonable person even superficially skimming this document would not realise it was (as it clearly states) a search order. I cannot accept that there is any reasonable doubt that Mr He was not aware that this was a search order (since it clearly states this in italicised font at the top of p 2 of the Search Order immediately below Mr He’s name, which is also emboldened), albeit that he may not on that first reading have appreciated precisely the terms of that order. His own evidence is that he assumed (see, for example, T 57.5) that it was a court document relating to these proceedings.

57. It is not disputed that Mr He used his mobile telephone at about 10.30am to call Mr Leung. Mr He says that he attempted to call Mr Leung and could not get through to him and that he shortly after 10.30am made another attempt to call Mr Leung and did get through to him. The documents produced by Vodafone (Exhibit F) (adjusted for daylight savings time) show that a call was made to Mr Leung’s mobile telephone from Mr He’s mobile telephone at 10.30am and lasted two minutes and nine seconds (see Exhibit F). Mr He has deposed that the conversation with Mr Leung was to the following effect (at [45] of Mr He’s affidavit affirmed on 27 March 2020):

He:   Hi Terry, did you receive anything from the court this morning? I have a group of people want to come into my house.

Leung:   I didn’t receive anything.

He:   These guys are around my house and one man wants to come into my house now. Can you come if possible? I feel very uncomfortable.

Leung:   I am in the city, but I will try to figure out what’s going on.

Pausing here, the first enquiry made by Mr Leung is consistent with Mr He’s understanding being that the documents were connected to the Court proceedings – and inconsistent with any belief that the people seeking access to his house were “government officials” there to make him disappear or “robbers”.

58. Mr He’s evidence is that after he spoke with Mr Leung he still had no idea what was going on and what was the purpose of the search party. Mr He says that the only thing that he knew was that there was a group of people who wanted to come into his house (see [43]-[45] of Mr He’s affidavit affirmed on 27 March 2020; T 56.10-T 58.25). Mr He has also deposed that his understanding was that any legal documents should go to his solicitor and that he thought it was “highly suspicious and unusual” that anyone should approach him (see at [41]).

59. According to Mr Blaxell’s report (see [11] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019), at 10.32am, Mr He reappeared at the front gate and informed Mr Blaxell that he had not been able to speak with his solicitors but expected to do so in about 10 minutes.

60. Relevantly, there is some discord here between the evidence of Mr Blaxell and Mr He. On Mr He’s evidence, his call with Mr Leung was after the conversation with Mr Blaxell in which Mr He said he had not been able to speak with his solicitor (Mr He says he went back inside and called his solicitor again, having not been able to make contact with him on the first occasion that he went inside the house). If the timing set out in Mr Blaxell’s report is correct, then by 10.32am Mr He seems already to have been able to speak with Mr Leung (and hence what Mr Blaxell records Mr He as having said at 10.32am would appear to be untrue). However, there does not appear to be another record of a mobile telephone call around this time and Mr He’s own evidence is that he did not again speak with Mr Leung until around 11.20am (see at [49] of his affidavit). I draw nothing from this apparent inconsistency in circumstances where the conversation and the telephone call on both accounts occur very close in time to the other and at around 10.30am. Suffice it to note that the documents produced by Vodafone show that a telephone call was made to Mr Leung’s mobile telephone from Mr He’s mobile telephone at 10.30am and that call lasted two minutes and nine seconds.

61. Mr Blaxell says that he again told Mr He that he was required to permit him entry while he took legal advice and that Mr He said “No” and shut the door (see [11]-[12], [15] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019).

62. Mr He’s evidence is (see [44] of Mr He’s affidavit affirmed on 27 March 2020) that he said:

I won’t let you in before I fully understand what is going on. I tried to call my solicitor, but it didn’t go through, I will keep calling him. If you come into the gate without my permission I will call the police.

63. At 10.44am, Mr He “factory reset” his Huawei Mate Pro 20 mobile device. Mr He admits that he did so (see [47] of Mr He’s affidavit affirmed on 27 March 2020). Ms Balit has confirmed that the device was reset at this time and has explained that a factory reset in effect “wipes” the device (see p 10 of Ms Balit’s second report dated 31 January 2020; [7] of Ms Balit’s affidavit affirmed on 5 May 2020).

64. Ms Balit, when asked by me to explain in lay terms what a factory reset was, said (at T 29.5-15):

A.   When it comes to an Apple device it effectively wipes and encrypts all the data that is available on the phone.  So it makes it ‑ it effectively makes it like a brand new mobile phone out of the box and the way Apple secure their devices we’re unable to recover any of that information.

…

A.   So if you were going to sell the phone you would do a factory reset.

…

A.   It’s just a matter of going into your settings and then you go factory reset.  It’s an option right there.

65. Mr He has deposed (see [47] of Mr He’s affidavit affirmed on 27 March 2020) that:

1. I was sitting in front of my table and tried to delete only my private data, including photos and videos. I did not want the world at large to see or read my private data or pictures. Then I realised that my private data is everywhere In my mobile and my iPad pro. I was very nervous, I really did not want other people [sic] see any of these things and its very embarrassing, especially between me and other family members including my wife. So I decided to factory reset my HUAWEI mobile and my iPad Pro to protect me and my family’s privacy. I did not intend deleting any information relating to these proceedings.

   66. Mr He has admitted that this mobile device had the WeChat application (T 61.25-27) (an admission relied on by his Counsel as demonstrating his candour).

   67. Although Mr He also deposed that at around this time he emptied the trash folder on his Apple iMac computer, it is clear from the forensic review that this did not occur until about an hour later at 11.46am (see further below).

   68. It emerges from Mr He’s own account of events to this point that he obviously understood how to effect a “factory reset” and knew that this would have the effect of deleting electronic data from the telephone. (I refer in due course to the evidence he gave as to his technician friend in China having explained to him how he could remotely effect a “factory reset”.)

   69. At 11.19am or 11.20am, Mr He’s mobile device was used to call Mr Leung’s mobile telephone. The call lasted one minute and 20 seconds (see [11] of Ms Balit’s affidavit affirmed on 5 May 2020). Mr He admits that he did so’ and says that he had a conversation with Mr Leung to the following effect (at [49] of Mr He’s affidavit affirmed on 27 March 2020):

Leung:   It looks like they have been to court and applied for an order without our appearance again. They said they will send it to me, but I still haven’t got the documents yet. Do you have it inside with you?

He:   No, I left everything outside the gate.

Leung:   I will speak to Mr Rohan De Meyrick about it.

He:   Sure.

70. Pausing here, Mr Blaxell’s evidence in cross-examination (see T 17.12-13) was that his recollection was that Mr He took the order with him when he first went back into the house (i.e., sometime between around 10.10am to 10.30am). It is said for Mr Sun that this evidence was not challenged and ought be accepted.

71. At 11.25am, Mr Leung arrived at the Warrawee premises and informed Mr Blaxell that he was the solicitor acting for Mr He. Mr Blaxell has reported that he handed to Mr Leung a copy of the Search Order and informed Mr Leung that Mr He was not acting in compliance with the terms of the Search Order in not permitting entry to Mr Blaxell (see [13] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019). Mr Blaxell has reported that Mr Leung then telephoned Counsel for Mr He (see also p 2 of Ms Balit’s first report dated 26 November 2019).

72. Somewhat curiously, Mr Leung did not go into the house. Mr He was cross-examined as to this (see at T 64.47-T 65.8) and says that this was because Mr Leung did not ask to come inside. Specifically, cross-examination was as follows:

Q.   Sorry, I’ll call him Terry.  At 11.25 Terry arrived and you didn’t let him in.  That’s right, isn’t it?

A.   INTERPRETER:  He didn’t want to come in.  Well, he didn’t ‑ he didn’t want to come in so I didn’t let him in.

Q.   You didn’t let your own solicitor in?

A.   INTERPRETER:  Terry arrived at my door.  He telephoned me outside of my house.  We had a conversation on the phone.  He never suggested to come in and he never wanted to come in and I didn’t offer him to come in.

Q.   And you didn’t do that because you knew he would stop you deleting all of your electronic records?

A.   INTERPRETER:  Not true.

73. Instead, Mr He communicated with Mr Leung via their respective mobile telephones while Mr Leung was outside Mr He’s house.

74. At 11.37am, Mr Leung used his mobile telephone to call Mr He’s mobile telephone. The call lasted six minutes and 56 seconds (see [11]-[12] of Ms Balit’s affidavit affirmed on 5 May 2020).

75. At 11.45am, Mr He’s mobile telephone was used to call the mobile telephone of Mr de Meyrick. The call lasted three minutes and 28 seconds (see [14]-[15] of Ms Balit’s affidavit affirmed on 5 May 2020).

76. In his affidavit, Mr He set out his conversation with Mr de Meyrick (see [50]-[52] of Mr He’s affidavit affirmed on 27 March 2020). Mr He accepted in cross-examination that the conversation with Mr de Meyrick was more extensive than there set out (although he says the further discussions not set out in his affidavit related to Mr de Meyrick “comforting” him) (see T 65.43-T 66.42). Mr He says that the only instructions he gave were to stop people coming into his house (see T 66.3-34).

73. Mr Blaxell has reported that at 11.45am he spoke with Mr Leung and that Mr Leung confirmed to him that he had advised Mr He that Mr He ought to permit entry to Mr Blaxell (see [14] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019).

74. The timing of the above conversations is significant because at 11.46am (after Mr Leung had advised Mr He that he ought to permit entry to the premises by Mr Blaxell and after Mr He had had a reasonably lengthy conversation with Mr Leung, lasting nearly seven minutes, and a further, albeit shorter, conversation with Mr de Meyrick, lasting about three and a half minutes), Mr He emptied the trash folder from his Apple iMac computer (deleting some eight gigabytes of files) and some other material, including a Google Drive (see pp 4-8 of Ms Balit’s second report dated 31 January 2020; [9]-[10] of Ms Balit’s affidavit affirmed on 5 May 2020). Ms Balit’s evidence is that she has been unable to determine when the files were moved to the trash folder but Ms Balit has noted that no files on the desktop matched the keywords for which she had searched and says that the files in the trash folder did match those keywords.

75. As I understand it, this puts in question Mr He’s assertion that the documents in the trash folder, or at least some of those documents, were duplicates of other documents most of which are still saved on his computer (see, for example, T 62.9-13; and see below).

76. Mr He’s evidence was that he only emptied the trash folder (see [48], [84] of Mr He’s affidavit affirmed on 27 March 2020). Specifically, his evidence is that (at [48]):

1. … I also emptied the trash folder of [sic] IMAC to protect my personal data and pictures. The files in the trash folder were unused files over the previous year. There were old bank statements, temporary files downloaded from the internet etc. Most of the duplicated documents are still saved on the desktop. I did not do so to deliberately prevent access as it was trash. I did not want my private photos, videos and private things being seen by these people as my private information is confidential and embarrassing if it seen by other people.

   81. In cross-examination, Ms Balit said that some documents were moved to the trash folder on the same day as the execution of the search order (T 26.3-11). For Mr Sun, it is noted that Ms Balit’s schedule of documents deleted, and the file paths of those documents, demonstrates that documents other than simply private photos and visuals (see T 60.41) were deleted; and that there were deletions from other places than just the trash folder.

   82. Mr He’s explanation in cross-examination of why private photos would be in his trash folder was as follows (T 61.29-48):

Q.   Now, at 48 you say that you emptied the trash folder of your iMac to protect my personal data and pictures.  Do you see that?

A.   INTERPRETER:  Yeah, yeah.

Q.   And can I suggest you did that between 10.44 and 11.40 that morning; is that right?

A.   INTERPRETER:  I can’t remember when I did it, but I could remember I was sitting in front of the computer and I did it in a hurry.

Q.     Your evidence is that the only thing you did was empty the trash folder on that computer; is that right?

A.  INTERPRETER:  That’s as much as I could recall.  I was in a hurry at the time.

Q.     Why is it that you were storing your personal data and pictures in the trash folder on your computer?

A.   INTERPRETER:  It’s not that I kept anything in my trash bank, it’s that I was concerned that I probably deleted some private photos or videos, and they were still in the trash bank, it was only something, a natural thing that I did when I was in a hurry to empty the trash.

83. Pausing here, I can accept that Mr He might have had a concern as to any earlier deleted private photos and/or videos that were still in that folder (contra, Mr He storing permanently personal data and pictures in the trash folder), although that does not explain the deletion of a vast amount of other material.

84. Perhaps more importantly, however, the explanation given by Mr He for the emptying of his trash folder (that he did not want people to view his private documents on his mobile telephone or computer) is, in my opinion, strongly suggestive of his understanding, by the time of those deletions, that the Search Order would permit access to those devices (since otherwise the concern as to access to such private data and documents would not make any sense).

85. Mr Blaxell has reported that, at 11.48am, Mr He appeared at the front door. Mr Blaxell says that he asked Mr He to confirm that he had been advised by Mr Leung that he should allow entry to him; and that Mr He did not reply and again went inside his house (see [15] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019).

86. At 11.50am, Mr He used his mobile telephone to call Mr de Meyrick’s mobile telephone. The call lasted one minute and 10 seconds (see [15] of Ms Balit’s affidavit affirmed on 5 May 2020).

87. At 11.53am, Mr He again used his mobile telephone to call Mr de Meyrick’s mobile telephone. The call lasted five minutes and 27 seconds (see [15] of Ms Balit’s affidavit affirmed on 5 May 2020). Mr He has deposed (see [50] of Mr He’s affidavit affirmed on 27 March 2020) to a conversation to the following effect occurring at “around 11:50am”:

He:   Did you receive the detailed documents? Can you go to court and apply to vary the order they have, I don’t want them to come into my house?

de Meyrick:   I will try to see what I can do, and you have two hours’ time to seek legal advice anyway.

He:   Nobody explained this to me.

88. Mr He’s account of this conversation is consistent with the fact that Mr Blaxell has reported that, at 11.58am, Mr He reappeared in his front garden talking on his mobile telephone and that he raised his voice at Mr Blaxell and threatened to call the police if the search party came past the front gate (see [16] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019; p 2 of Ms Balit’s first report dated 26 November 2019); and that Mr He indicated that he was talking to Mr de Meyrick and Mr He asked why Mr Blaxell had not advised him that he had two hours to seek legal advice. Mr He has deposed (see [51] of Mr He’s affidavit affirmed on 27 March 2020) that he said to Mr Blaxell:

Why you never told me that I have two hours for legal advice? My solicitor is going to court now.

89. On Mr He’s own evidence, therefore, by about 11.53am (and 11.58am at the latest), instructions had been given by him to his legal representatives to make an application to the Court in relation to the document that had been served on him. I was informed (from the virtual bar table) (see at T 111.37-38) that, at around 11.50am, Mr Leung received an email with the Search Order attached, which is consistent with instructions being given at around this time to make a court application (as Mr He has deposed he said to Mr Blaxell at around 11:50am).

90. Mr Blaxell has reported that he replied to Mr He that he (Mr Blaxell) had offered to explain the terms of the Search Order but that offer had been declined; that he had only sought entry for himself; and that Mr He had been given legal advice and his solicitor (Mr Leung) had been in attendance since 11.25am (see [16] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019). Mr Blaxell says that Mr He then returned inside the house.

91. At approximately 12.14pm (noting that this was, on Mr He’s own evidence, after instructions had been given to apply to vary or discharge the Search Order; and after Mr Leung had confirmed to Mr Blaxell that he had advised Mr He to permit entry to the premises by Mr Blaxell), Mr He “factory reset” an Apple iPad Pro (see p 10 of Ms Balit’s second report dated 31 January 2020; [7] of Ms Balit’s affidavit affirmed on 5 May 2020).

92. Mr Blaxell has reported that, at 12.28pm, he informed Mr Leung that two hours had elapsed since service of the Search Order and that Mr He was now required to permit access to the entire search team; and that Mr Leung told Mr Blaxell that he would advise Mr He (see [18] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019).

93. At 12.59pm, Mr Leung used his mobile telephone to call Mr He’s mobile telephone. The call lasted five minutes and 31 seconds (see [13] of Ms Balit’s affidavit affirmed on 5 May 2020).

94. Meanwhile, at some point prior to 1pm the application on behalf of Mr He to vary or discharge the Search Order came before Lindsay J in the Duty List. The transcript (Exhibit G) of that hearing records that Lindsay J was informed by Mr de Meyrick that a telephone call had been received approximately half an hour before from Mr Leung saying that he had a call from Mr He who had some search warrant or orders served on him.

95. Again, I pause here to note that this evidences Mr He’s apparent understanding at that point, at least insofar as that had been accurately conveyed by Mr Leung to Mr de Meyrick, and that the instructing solicitor had arrived at the house about 20 minutes or half an hour before. Both Counsel appearing on that application (Mr de Meyrick and Mr Pesman) agreed that the matter had been called on before his Honour at approximately 12.45pm, they having been sitting at the back of the Court for a period of time before that (see T 112.5).

96. The transcript also records that: prior to the hearing commencing, Mr de Meyrick had texted Mr Leung to tell him that the independent solicitor should be let in (T 1.36 of the transcript of the hearing before Lindsay J) (though also see T 1.47); the reason that the Search Order was sought and obtained was to test the authenticity of electronic records underlying Mr He’s affidavit (T 2.32-37 and T 3.20-30 of the transcript of the hearing before Lindsay J); and Mr de Meyrick informed his Honour that Mr He is “a businessman” and “if he was to have those devices removed, the effect on him will be enormous” (T 4.28-30 of the transcript of the hearing before Lindsay J) (clearly indicating that there was an awareness on the part of Mr de Meyrick that the Search Order permitted the removal of electronic devices).

97. At around 1.15pm, it appears that the Court adjourned until 2.15pm (T 7.19 of the transcript of the hearing before Lindsay J).

98. Meanwhile, at 1.06pm, Mr Leung used his mobile telephone to call Mr He’s mobile telephone. The call lasted 26 seconds (see [13] of Ms Balit’s affidavit affirmed on 5 May 2020).

99. At 1.09pm, it seems that Mr Blaxell advised Mr He of the extension of time to execute the Search Order and gave Mr He a deadline to permit entry by the search party (see p 2 of Ms Balit’s first report dated 26 November 2019).

100. At 1.10pm, Mr He’s mobile telephone was used to call Mr de Meyrick’s mobile telephone. The call lasted three seconds.

101. At 1.11pm, Mr He’s mobile telephone was again used to call Mr de Meyrick’s mobile telephone. The call lasted three minutes and three seconds (see [14]-[15] of Ms Balit’s affidavit affirmed on 5 May 2020) (from which I infer that Mr de Meyrick must by then have been out of Court). Mr He admits that he used his mobile telephone to call Mr de Meyrick and says that he had a conversation to the following effect (see [52] of Mr He’s affidavit affirmed on 27 March 2020):

He:   How did you go with the application to vary the order?

de Meyrick:   I tried my best but unfortunately you have to allow them to come in and the solicitor will explain to you what is in the order and just follow [sic] what he said.

He:   Fine, thanks anyway. I will let them in.

102. Mr He still does not seem to have responded promptly in so doing (contrary to his affidavit evidence that when he was instructed to do so he permitted access immediately) since at least another four minutes seem to have elapsed before he permitted access.

103. At 1.18pm, Mr Leung used his telephone to call Mr He’s mobile telephone. The call lasted 17 seconds (see [13] of Ms Balit’s affidavit affirmed on 5 May 2020).

104. At approximately 1.20pm, Mr Leung advised Mr Blaxell that Mr He would permit entry to the search party and the search party, accompanied by Mr Leung, entered the premises (see [20]-[21] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019; p 2 of Ms Balit’s first report dated 26 November 2019; [7] of Ms Balit’s affidavit affirmed on 5 May 2020). Mr Blaxell says that the occupants of the house at that time were Mr He, his wife (Ms Lei Zhang) and Mr He’s father-in-law and mother-in-law.

105. Mr Blaxell’s report sets out what he says he said in explanation of the Search Order. He says that it was simultaneously translated by Ms Shi. Mr Blaxell’s report is relevantly in the following terms (at [20] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019):

1. … I informed the gathered group that I was an Independent Solicitor authorised by the Supreme Court of NSW to carry out a Court Order for search and seizure of documents and devices at the premises, and that they were obliged by the terms of the Order to allow that search to occur, and to assist with it as requested. I read to them the provisions of clauses 24 and 25 of the Order and the Penal Notice on the Order and emphasised the serious nature of the Order and the penalties for non-compliance…

   106. Mr He says that the above briefing by Mr Blaxell was the first time that he knew what was in the Search Order (see [54] of Mr He’s affidavit affirmed on 27 March 2020; see also his cross-examination at T 56.10-T 58.25).

   107. Pausing here, Mr Sun emphasises Mr He’s evidence that he did not consider that he needed to tell Mr Blaxell that he had already done things that the Search Order prohibited. In this regard, Mr He made clear in his cross-examination that he did not see the need to volunteer any information (see T 67.27-T 68.45).

   108. Mr Blaxell describes what then occurred, after the search had commenced, in relation to Ms Zhang’s mobile telephone (including that Mr He snatched the device back and returned it to Ms Zhang, telling him that they could “put him in jail if they wanted” or “arrest him”) (see [22], [26]-[28] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019). Mr He admits that he took the device back and gave it to Ms Zhang (see [67]-[69] of Mr He’s affidavit affirmed on 27 March 2020). Mr He says he was angry that the plaintiff’s solicitor (Mr Prime) was giving instructions as to what to search.

   109. Ms Balit has confirmed that WeChat was at that time not installed on Ms Zhang’s mobile device and that there were no calls or messages between Ms Zhang and Mr He (see pp 2-3 of Ms Balit’s first report dated 26 November 2019; [19], [22] of Ms Balit’s affidavit affirmed on 5 May 2020).

   110. Ms Zhang and her mother soon after left the house (and did not return before the search party left at 6.35pm).

   111. After the search had commenced, Mr He handed to Ms Balit his Huawei Mate Pro 20 mobile device. It appears that Ms Balit informed Mr He that it would not be “mirrored” in less than eight to ten hours and that it would need to be removed; and that Mr He protested that he could not be without his mobile telephone for the weekend as it contained all his contacts and telephone numbers.

   112. Pausing here, as it had by then been “factory reset”, in fact, it only contained the telephone numbers of Mr Leung and Mr de Meyrick. Hence, the concern expressed by Mr He that he would be without all his contacts and telephone numbers was disingenuous to say the least.

   113. Ms Balit says that she told Mr He it would be possible to mirror the two SIM cards and return them in a relatively short period which would enable him to have an operable telephone with his own number when the SIM cards were inserted into another handset and that Mr He agreed to this course (see [22] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019; p 3 of Ms Balit’s first report dated 26 November 2019; [17]-[18] of Ms Balit’s affidavit affirmed on 5 May 2020).

   114. Mr He admits that he gave Ms Balit his Huawei Mate Pro 20 mobile device with his SIM cards and telephone lock password (see [57] of Mr He’s affidavit affirmed on 27 March 2020).

   115. Meanwhile, Mr Blaxell says that he asked Mr He to gather up all electronic devices in the house (see [23] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019) and bring them to the central location (the kitchen) where Ms Balit had set up her equipment. The search then continued throughout the house.

   116. Ms Balit has reported that, at approximately 2.36pm, she completed imaging of the first Vodafone SIM card that had been in Mr He’s Huawei Mate Pro 20 device and returned it to him (see p 3 of Ms Balit’s first report dated 26 November 2019; [35]-[37] of Ms Balit’s affidavit affirmed on 5 May 2020). Mr He says he did not record (or, does not recall) when Ms Balit gave the SIM card back to him (see [81] of Mr He’s affidavit affirmed on 27 March 2020) but does not appear to dispute that Ms Balit did give the Vodafone SIM card back to him at some point (I pause to note that this is relevant in light of later events – see below).

   117. Ms Balit has reported that, at approximately 2.44pm, Ms Balit completed imaging the second “generic” SIM card of Mr He’s Huawei Mate Pro 20 device and returned it to Mr He (see p 3 of Ms Balit’s first report dated 26 November 2019; [35]-[37] of Ms Balit’s affidavit affirmed on 5 May 2020).

   118. A number of electronic devices were located in Mr He’s study, including an Apple iMac computer and an Apple iPad Pro; and these were taken to the kitchen (see [30] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019; p 4 of Ms Balit’s first report dated 26 November 2019; [37] of Ms Balit’s affidavit affirmed on 5 May 2020).

   119. Ms Balit has reported that, at approximately 3.05pm, Ms Balit was asked by Mr Blaxell to assist in the search of the study and that she located in a drawer (along with other electronic devices) a SIM card which she identified as the “generic” SIM card that she had just imaged and returned to Mr He (see p 4 of Ms Balit’s first report dated 26 November 2019; [37] of Ms Balit’s affidavit affirmed on 5 May 2020).

   120. Mr Blaxell similarly reports that the search proceeded to other rooms and that, in a room he says was identified by Mr He as Ms Zhang’s study, a number of devices were located, including an Apple iPhone X with a broken screen, which Mr Blaxell directed Ms Shi to deliver to Ms Balit (see [31]-[34] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019). This is the device that Mr He has deposed was dropped in the pool at a friend’s property in around mid-2019; and that he says he was not able to turn on or charge. He has deposed that “at that time” he arranged a factory reset “with a technician friend in China” (see [77] of Mr He’s affidavit affirmed on 27 March 2020).

   121. Ms Balit has reported that, at 3.37pm, she was handed the Apple iPhone X with the broken screen by Ms Shi and that she plugged the mobile telephone into a power supply to charge the battery (see p 4 of Ms Balit’s first report dated 26 November 2019; [23]-[24] of Ms Balit’s affidavit affirmed on 5 May 2020). It seems that Ms Balit was able to charge the device (while Mr He’s evidence is that he had not been able to do so) because Ms Balit reports that, at approximately 3.54pm, she noticed that the Apple iPhone X had automatically switched on. Ms Balit reports that she used the same password as Mr He’s current Huawei Mate Pro 20 device to unlock this Apple iPhone X and, significantly for present purposes, she took a photograph of the screen after it was “powered on” (see pp 4-5 of Ms Balit’s first report dated 26 November 2019; [25]-[27] of Ms Balit’s affidavit affirmed on 5 May 2020).

   122. Ms Balit then reports that, at 4.37pm, Mr He asked her if he could check if the Apple iPhone X had the Vodafone SIM cards that Ms Balit had returned to him earlier that day. Ms Balit says that she witnessed that Mr He then “factory reset” the Apple iPhone X (see pp 5, 7 of Ms Balit’s first report dated 26 November 2019; pp 10-11 of Ms Balit’s second report dated 31 January 2020; [29]-[32] of Ms Balit’s affidavit affirmed on 5 May 2020).

   123. At 4.40pm, Ms Balit told Mr Blaxell that she had witnessed Mr He “factory reset” the Apple iPhone X and that Mr Blaxell put this allegation to Mr He, which Mr He denied (see [36]-[37] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019). In other words, Ms Balit challenged Mr He at the time as to what she had seen (although he denied having acted as she suggested).

   124. As to Mr He’s denial that he reset the Apple iPhone X, Mr He has deposed (see [78], [85] of Mr He’s affidavit affirmed on 27 March 2020) that (at [78]):

1. … Ms Balit gave the phone back to me for me to locate the sim card I gave to Ms Balit previously. I only had the phone for less than a minute and plug back into the charger after I realised there is no sim card in there. The screen was flashing and only 4% battery.

   125. Mr He’s evidence is that the device was reset at an earlier time (after the device had been dropped into the pool) and it is suggested that the reset was not able to be effected until the device was charged. In cross-examination, Ms Balit says that, if the handset had been previously “factory reset”, then there would not have been the security PIN of the handset nor the notifications on the homescreen that she observed when it had “powered on”. Ms Balit’s evidence is that if the telephone had previously been remotely “factory reset” then there would be a constant “ping” to stop unauthorised access and that as soon as the handset is turned on it receives the “ping” (see at T 30.12-38). In this regard, it is noted that in cross-examination (see at T 70.27-T71.32), Mr He says that Mr Wong Wey from Wuhan told him how to “factory reset” the mobile remotely and not, as Mr He had deposed in his affidavit, that Mr Wong Wey had himself done this remotely.

   126. Ms Balit then commenced the process of verifying the logins and passwords used by Mr He to access his online and email accounts, including Google Gmail, Microsoft Hotmail, Apple iCloud and Dropbox. Ms Balit reports that Mr He supplied three passwords which he indicated were used to access all of his online accounts. Ms Balit says that none of the passwords worked and that the passwords were incorrect; and that she was unable to access any of the online accounts using the passwords supplied by Mr He (see [38] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019; pp 5-6 of Ms Balit’s first report dated 26 November 2019; [33] of Ms Balit’s affidavit affirmed on 5 May 2020). Meanwhile, Mr He has deposed that he provided all his passwords (see [80] of Mr He’s affidavit affirmed on 27 March 2020). In this regard, Mr Sun points out that Mr He does not address the allegations regarding passwords for access to his accounts.

   127. Mr Blaxell has reported that, from 5.05pm to 5.50pm, the following happened: Mr He indicated that all of his passwords were stored on his Apple iMac computer taken from his home study; Ms Balit “powered up” the Apple iMac computer to extract passwords for verification and the process of attempting verification continued until 5.50pm; none of the extracted passwords worked; Mr He had removed his SIM card from his mobile telephone which prevented “two-factor authentication of certain accounts”; and Mr He claimed to have lost his Vodafone SIM card (see [38]-[42] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019; pp 5 and 6 of Ms Balit’s first report dated 26 November 2019; [34] of Ms Balit’s affidavit affirmed on 5 May 2020).

   128. The search concluded at 6.35pm (see [47] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019).

   129. Mr Sun complains that, to date, Mr He and Mr Leung have failed to provide the passwords to enable access to the online and email accounts in the devices. As already noted, Mr Sun maintains that this is a continuing unpurged contempt. Mr de Meyrick informed me that his instructions were that all passwords had been supplied but I was not taken to any evidence to demonstrate that this was the case. In that regard, I accept Ms Balit’s evidence that she has not been supplied with the passwords to enable access to the online and email accounts; and Mr He’s failure to supply them is consistent with his uncooperative attitude generally (see below).

Witnesses

130. As a general proposition, Mr Sun submits (and I accept) that the evidence of the independent witnesses should be preferred to that of Mr He.

131. Those independent witnesses have no interest in the outcome of the proceedings and their reports evidence a consciousness of their responsibilities as the independent solicitor and computer expert, respectively, appointed by this Court.

132. Further, it is said, in the case of Ms Balit, that her evidence is supported by examination of electronic records (it being noted that no contrary expert evidence has been served). It is further noted that the accuracy of the timeline in Ms Balit’s initial report was confirmed by the later forensic examination of the devices (establishing her reliability in terms of the reporting of the timing of events on that day).

133. As to each of the witnesses, I make the following observations and findings in relation to his or her evidence.

Mr Blaxell

134. Mr Blaxell, the independent solicitor appointed by the Court, was cross-examined by Counsel for Mr He (see from T 14).

135. Mr Blaxell’s evidence was that he first handed Mr He the Search Order and asked him to read it and then (shortly after) he handed him the four lever arch files of accompanying documents (see at T 16).

136. Mr Blaxell said in his report (at [7] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019) that he emphasised that it was a serious matter and that he read Mr He the penal notice. During cross-examination as to this, there was the following exchange (at T 17.1-13; T 17.35-T 18.7):

Q.   ….  Was that, was he reading at the same time or was he listening to you, what was happening then?

A.   He was listening, we were engaging in conversation then.

Q.   And you then say he started to read the documents in paragraph 8 and he went through a few pages of it and then said, “It’s too much for me I have to talk to my solicitor” or words to that effect?

A.   That’s right.

Q.   Now at that stage he left the documents on the side of his gate and went back inside is that right?

A.   My recollection is that he took the order with him but left the remainder of the documents.

…

Q.   Sir I was taking you to page 462 of the Court book and to Mr He’s account of the initial exchanges between you and him.  He says at paragraph 38 that at one stage he was trying to say something and you were trying to say something to him and you were basically if I can summarise talking over each other, did that happen?

A.   I don’t recall specifically, no.

Q.   Right.  You don’t say it didn’t happen you just don’t recall it or?

A.   I don’t recall it.

Q.   And he said to you in effect something like “It’s too much for me, I’ll leave everything here, I’m not taking anything from you or discussing anything with you”, and I’m reading from the top of page 463 here sir, “I have my solicitor to handle my case for a couple of months already, please direct to my solicitor any legal documents.”  Do you remember him saying something like that?

A.   I remember him saying, “It’s too much for me and I need to talk to my solicitor.

Q.   All right.  And then you said, “You have to let me come in now.”  And he said, “No I won’t let you come in before I fully understand what’s going on.  How do I know who you are, where you’re from, I’m going to call my solicitor.”  Do you remember him saying something like that sir?

A.   Yes.

137. As to Mr Blaxell’s answer that he did not recall that he and Mr He were talking over each other, my impression of that answer at the time was that Mr Blaxell was there saying that he simply did not recall that the two were “talking over each other” not that he was accepting that it was possible that they had been talking over each other (and had later forgotten this), but nothing turns on this.

138. In Mr Blaxell’s account of his initial encounter with Mr He, Mr Blaxell says (see his affidavit affirmed on 9 April 2020 at [6]) that he read out the wording of the penal notice order and that he further said, “you are required to permit me to enter the house. You may not disturb or destroy any document or device”. Mr Blaxell was cross-examined as to this and the suggestion was put to him that when he wrote his initial report to the Court at the time he did not include a statement in it that he had told Mr He that, pursuant to the terms of the order, he was not supposed to disturb or destroy any document. Mr Blaxell did not accept that proposition; rather, he said that he had said that to Mr He and said that he had recorded that at [9] of his report (to which I have referred above) (see T 18.35 – T 19.10). Mr Blaxell also did not accept the proposition that it was possible that he had said this at a time when Mr He was talking over him (as described in Mr He’s affidavit) (see T 19.14-15).

139. I observed that Mr Blaxell was firm in his evidence that the point about the destruction of documents was an important one and that he made it more than once.

140. As already noted, Mr Blaxell also did not accept that Mr He was confused, though he did accept that Mr He was “to a degree” flustered and upset by his presence but was “not overly” so (see T 19.19).

141. Mr Blaxell accepted that, in a later exchange, Mr He said something to the effect that he apprehended after talking to his lawyers that he was allowed two hours to set the order aside (see T 19.35).

142. Mr Blaxell presented as an objective and independent witness who was careful to record what had happened and did not embellish his evidence. I regarded him as a careful and considered witness. He was not defensive in the witness box and his evidence is consistent with him having a clear understanding of his obligations as the court-appointed independent solicitor. I accept that he was careful to impress upon Mr He the seriousness of the matter (and the need not to destroy documents). I do not accept that there is a reasonable doubt as to the parties talking over each other. I accept that, had that occurred, Mr Blaxell would have recorded it in his report (and there was no such record in his report).

143. Accordingly, I accept Mr Blaxell’s evidence unreservedly.

Ms Balit

144. Ms Balit, the independent computer expert appointed by the Court, was also cross-examined by Counsel for Mr He (see from T 24). I also considered Ms Balit to be a measured and objective witness.

145. In relation to the desktop computer, as indicated above, Ms Balit confirmed that she was unable to know when files had been moved to the “trash can” but she confirmed that the “trash can” had been emptied on 22 November 2019 (see T 26.4).

146. Ms Balit was able to identify what mail boxes were associated with the computer. Ms Balit confirmed that there were two user accounts linked to the device (and said that there were no mail boxes configured for use by the second account name – “Ethan”) (T 26.5 – T 27.6).

147. As to the incident concerning the Apple iPhone X with the broken screen, about which there was no little time spent in cross-examination, Ms Balit said that the interpreter had handed her the device when the search party was looking through some of the rooms and that the interpreter told her it did not have any charge. Ms Balit agreed that she plugged it into a power supply and saw that the screen was damaged (see T 27.42-47); and that the time was not set to local Sydney time (she thought it might have been set to an overseas time but was only speculating as to this) (see T 27.49 – T.28.2).

148. The significance of Ms Balit’s evidence as to the Apple iPhone X goes to whether it was “factory reset” by Mr He (in her presence and at a time after he was clearly aware of the import of the Search Order) or whether, as Mr He says, it may have been reset or “remotely” reset at some previous time and this “reset” was effected automatically when the handset was recharged.

149. Relevantly, the cross-examination proceeded as follows (at T 28.4-20; T 28.31-50):

Q.   You know, don’t you, not only as an IT expert, but as a phone user yourself, that any phone that is functional and operative will automatically show the right time normally?

A.   It depends if you override the settings to pick a different time zone.  It also comes down to if you have a SIM card in the phone.  If you do it usually picks up what time zone that SIM card is in.

Q.   All right‑‑

A.   There was no SIM card in this phone, so my guess is I hadn’t looked at it at the time but it may have been either set to the Apple time or it may have been set to I think there was some overseas times on some of the phones but I ‑ as I said I didn’t get a chance to examine that phone.

Q.   So you mention in the first full paragraph on page 145 around about 4.30‑ish, 4.37 you say, Mr He asked you if he could check the Apple iPhone X for the Vodafone SIM card that you’d returned to him earlier in the day?

A.   Correct.

…

Q.   All right.  Now you go on to say that when you got up to look you noticed that while in his possession Mr He initiated a factory reset?

A.   Correct.

Q.   Now can I take it that the way you formed that view is as described after that sentence on page 145, namely that you observed a black screen on the mobile phone with the Apple logo and loading screen?

A.   Correct.

Q.   Followed by a display with a welcome start up page?

A.   Correct.

Q.   At that stage prior to Mr He picking up the phone had you done anything more than simply plug it in to charge?

A.   I confirmed the PIN number on the phone by testing the one that he’d provided me to his main Huawei phone to see that it unlocks it, I took a photo of the home screen once I noticed the damage and saw notifications on the screen.  I did not do – I’d have to go back to my notes, I don't believe I got the serial number or the IMEI at the time prior to handing it to Mr He but I definitely got that afterwards.

150. Ms Balit accepted that it was possible remotely to effect a “factory reset” of Apple devices (at T 29.23-37):

A.   It’s a possibility but it comes down to a number of factors that the phone has to be configured with a iCloud account, and it also has to be connected to a network whether it be Wi‑Fi or mobile network.

Q.   Apple offer a function don't they were for instance if you for argument’s sake if you've lost or can't find a phone or if it’s stolen or whatever you can just simply log in to your Find My Device or the cloud on another Apple device and instruct it to remotely factory reset the device that you no longer have?

A.   If you have it configured to your iCloud account then yes you can do that.

Q.   And similarly if you had a phone that was damaged or you weren’t using anymore and you were having trouble logging into it you could for security purposes through having it remotely wiped or factory reset?

A.   Yes if you have it configured you can do that.  If you don’t have it configured it’s not something that you can just log in and do.

151. However, there was then the following exchange (at T 29.39 - T 30.38):

Q.   If you did do such a factory reset remotely would you not see the factory reset signs when you first fired that phone up again to use it?

A.   Correct.  But when I connected the phone to the charger and it once it got received power and turned on it was already at the lock screen and it had notifications on the screen made when they were most likely old notifications and there was a PIN number enabled, so if you do a factory reset all your notifications go, your accounts go, your PIN number goes so there should be nothing on the phone except to see that Apple have.

Q.   If a phone is switched off not just shut down but actually powered down there’s no way the factory reset can commence‑‑

A.   Correct

Q.   It would not be inconsistent with a remote factory reset having been previously done to that phone that when it finally had enough charge in it and was unlocked that you saw all those signs you say you saw of a Welcome screen et cetera which you describe on page 145?

A.   If the phone was factory reset prior to me plugging it in there would not have been a PIN number on the phone and there would not have been notifications on the home screen.  And you can see that in the first photo that I took as part of my report on 26 November.

Q.   Surely the PIN number is still going to work until the factory reset message gets through to the phone?

A.   No.  That's the point of the factory reset to bypass the PIN number.

Q.   Yeah but you can’t factory reset a device with a flat battery can you?

A.   No.

Q.   So the factory reset I presume is an instruction waiting in the cloud somewhere to be given to the phone as and when it's fired up again?

A.   Correct.

Q.   And you can’t tell us now sitting there can you whether that instruction would be pinging to the phone or messaging the phone at any particular time distance, it wouldn't be a constant message surely?  It would surely be something where every five or every ten minutes it sent out a message to see if the phone was online?

A.   No it would be a constant ping to stop unauthorised access from the phone, so that way as soon as it turns on it will receive that ping.

[Emphasis added]

152. Ms Balit was also cross-examined as to her evidence about resetting the passwords. Relevantly, her evidence was that on the day she attended Mr He’s premises at Warrawee he told her that he had given her every password he had; and that some of the passwords were just stored in the device such that they automatically came up when one logged in. Ms Balit confirmed that Mr He had informed her that there were no other passwords or log in details. Ms Balit also referred (see at [34] of her affidavit affirmed on 5 May 2020) to an agreement (that I admitted as evidence of what was said, not as to the conclusion that there was an agreement) that Mr He would reset his passwords and provide her with those passwords by 26 November 2019. Ms Balit has deposed that no attempt had been made to provide these passwords. Ms Balit was pressed on that evidence in cross-examination and there was the following exchange (at T 32.7-38):

Q.   I wanted to suggest to you that in fact there was no discussion or agreement that Mr He would reset passwords and provide those to you at some time after you left the property?

A.   Yeah so when we were at the property we used his iMac desktop computer where he said the passwords were saved to try and access the accounts from the computer.  Because we had too many failed attempts by myself and by Mr He to access the accounts multifactor authentication kicked in which meant it was Google and iPlan and all of those services were attempting a breach of his account so they were enabling a second factor for a code to be sent to his mobile phone.  His mobile phone was the Vodafone SIM card, it was ending in 21, I believe it was, because the number that it only shows us is the last two digits which is then what prompted us to ask for the Vodafone SIM card back to be able to reset the password.  So we get the code from the phone.  He then stated he lost the SIM card and said he would go to the Vodafone store over the weekend to get a new SIM card to send the code to that and then let us access the accounts.

Q.   I want to suggest that you’re mistaken and there was no discussion or no undertaking to provide you with any further pass codes or information after 22 November?

A.   I disagree because it was part of the orders that we had access to the online accounts and it was discussed.  It was, at one stage, that we would sit there all night until we got the Vodafone SIM card back and it never happened, then we decided to leave and that was the agreement.

Q.   How would he be able to, as you put it, in paragraph 34 “Reset his passwords” if he didn’t have the devices because you had all the devices, didn’t you, as at the time you left, quite a large boxful of devices and computers including the iMac were all taken with you?

A.   Yep, access at a friend’s place or his solicitor or lawyer’s place to get access to devices.  They can be accessed ‑ as they’re cloud based accounts they can be accessed from any device.

[Emphasis added]

153. I found that Ms Balit was cogent in her evidence and her explanation of events was logical. In particular, her explanation as to the circumstances in which the passwords were not provided (particularly her evidence that there was a discussion as to whether the team would sit at the Warrawee premises all night until they obtained back the Vodafone SIM card, which seemed to me to be said with feeling), to my mind, rang true.

230. Moreover, Mr He exhibited an uncooperative and obstructionist attitude throughout the execution of the Search Order (and conceded that he was angry). He accused the independent lawyer of being in the same group as the perceived stalkers (see T 68.15) and seems to have regarded Mr Blaxell as his adversary rather than as an independent court appointed solicitor; he was upset when Mr Prime “was giving instructions as to what to search and what to do” (T 70.20).

231. In the context of this evidence, the notion that Mr He suddenly volunteered the Apple iPhone X (as opposed to it being discovered during the search) cannot be accepted.

232. That brings me to the allegation that Mr He deliberately reset the Apple iPhone X. Ms Balit’s evidence is, in my opinion, conclusive on this point. She took a photograph of the screen after the handset had charged sufficiently to turn on. Her evidence is that the PIN would not have been showing had the handset previously been factory reset and that, had there been a remote reset that had previously been put in place, this would have operated immediately after the battery had sufficiently recharged (see T 29.39ff). I accept that evidence. The evidence relayed from Mr He’s “technician friend” in China is unreliable and unpersuasive.

233. I am satisfied beyond reasonable doubt that Mr He deliberately preformed a “factory reset” function on the Apple iPhone X at or about 4.37pm at a time when, even on his own evidence, he was aware of the terms of the Search Order.

234. As to the provision of passwords, I accept Ms Balit’s evidence that the passwords provided by Mr He failed to enable her to access his email and online accounts and the evidence of Mr Neal that no such passwords have since been provided. Mr He’s explanation for this (that he thought this would be done in the context of his affidavit evidence) makes no sense – since even now no such passwords have been provided.

235. For the preceding reasons (and, as to the particular charges, also the reasons which follow), I am satisfied beyond reasonable doubt, and so find, that Mr He’s actions in refusing access to the premises, deleting the electronic records, failing initially to disclose the Apple iPhone X then performing a factory reset on the handset and failing to date to provide passwords to enable access to his online email accounts were in deliberate defiance of the Search Order.

236. I further find that Mr He’s actions were calculated to interfere with (and to frustrate) legitimate investigations into the electronic devices in his possession and hence that they had a tendency to (and were calculated to) interfere with the administration of justice (by making it difficult for Mr Sun to establish the reliability of the WeChat conversations deposed to in the extant evidence).

237. Turning to the particular charges, I find as follows.

Charge 1 –deletion of electronic data

261. As to the particulars in relation to charge 1, Mr Sun relies upon the following.

262. First, that the Search Order was served on 22 November 2019 (referring to Mr Blaxell’s 27 November 2019 report at [6]). This is not in dispute.

263. Second, that at or about 10.24am Mr Blaxell offered to explain the order to Mr He and observed him reading “perhaps four or five pages” (which Mr He disputes) and then saying to Mr Blaxell that he had to talk to his solicitor. (Mr Sun relies in this regard upon Mr Blaxell’s 27 November 2019 report at [9]).

264. Third, that at 10.32 am Mr Blaxell again informed Mr He that he was obliged to permit Mr Blaxell to enter while he took legal advice and that this was repeated in Mandarin by Ms Shi (referring to Mr Blaxell’s 27 November 2019 report at [11]). Mr He again disputes this.

265. Fourth, that at 11am the Huawei Mate Pro 20 had been “wiped” - the only information then on it being two contacts (those of Mr Leung and Mr de Meyrick) created at about 11am (that is after the handset had been “wiped”). Mr He does not dispute this occurred (and see Ms Balit’s second report dated 31 January 2020 at p 10).

266. Fifth, the deletion, between 11.25am and 11.36am, of some eight gigabytes of data from the Apple iMac computer and, at 11.36am, the emptying of the trash folder. The fragments of deleted files could only be partially recovered, but they included references to WeChat, WhatsApp, “BoSun” and an identified telephone number (with the +8618 prefix). Ms Balit could not determine when those deletions occurred. In this regard, it is said for Mr Sun that that material would likely have fallen within the Search Order. Mr He says that he only emptied the trash folder (see Ms Balit’s second report dated 31 January 2020 at p 10 which contradicts Mr He’s position. In this regard, I note also my findings, and what I have said elsewhere, in these reasons. .

267. Sixth, the conversation to which Mr Blaxell deposes with Mr Leung at 11.45am (see at [14] of Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019) during which he says that Mr Leung confirmed that he had advised his client that he ought to permit entry by the independent solicitor. Mr He argues that as soon as he was advised by his lawyer to permit entry he did so. However, Mr He’s submission in this regard cannot be accepted in light of the chronology of events and findings that I have made (as set out above).

268. Seventh, the factory reset at 11.49am of Mr He’s Apple iPad Pro (see Ms Balit’s second report dated 31 January 2020 at p 10), which Mr He does not dispute occurred.

269. Eighth, the factory reset of the Apple iPhone X which Ms Balit says was initiated by Mr He at, or about, 4.37pm (and which Mr He denies but which I have found occurred) (see Ms Balit’s first report dated 26 November 2019 at p 5). Ms Balit subsequently examined the forensic image of the device which confirmed it was “wiped” at this time and that no data could be recovered. Mr Sun says (and I accept) that Mr He’s denial that he “factory reset” the device should not be accepted.

270. As adverted to, Mr Sun maintains that a critical issue in the proceedings is which version of the WeChat records has been altered. As also noted earlier, Mr He contends that this will not be dispositive or not necessarily dispositive but it cannot be disputed that it is likely to be of significance (if nothing else on credibility issues).

271. Mr Sun notes that there is some evidence from Ms Balit that the Apple iMac computer contained relevant records; and the other devices were entirely “wiped” by Mr He. It is submitted that it should be inferred that taking those steps in the face of the Search Order and the presence of the search party was because they contained relevant records.

272. Having regard to the factual findings I have made, I am satisfied that this charge is established beyond reasonable doubt. There is no doubt that Mr He intentionally deleted electronic files and data relating to these files in his possession, power, custody or control. He did so at a time when I have found he was aware that a search order had been made. The evidence has also established that Mr He, at that time, thought it was to do with the existing court proceedings and he had been given a clear explanation as to what he was obliged to do (and, significantly, that he was not to destroy any of the electronic data or devices). And yet, he systematically proceeded to delete a large number of files relating to the proceedings. The only logical reason for so doing (given that, on any view, the deletions went way beyond personal photos or the like) was to prevent access to the data. This clearly had the inherent tendency, and was calculated, to interfere with the administration of justice.

Charge 2 – password change

273. As to charge 2, Mr Sun relies upon: Mr Blaxell’s report of 27 November 2019 (Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019 at [38]-[42]); Ms Balit’s first report dated 26 November 2019 (at pp 6-7); and Ms Balit’s second report dated 31 January 2020 (at pp 1-2) and contends that Mr’s He’s deletion, modification, fabrication or otherwise alteration of the WeChat conversations should be inferred from Mr He’s refusal to provide this information in face of the Search Order.

274. Having regard to the factual findings that I have made above, I am satisfied that this charge is established beyond reasonable doubt. None of the passwords provided by Mr He enabled access to Mr He’s online or email accounts and Mr He appears to have made no effort since then to facilitate the provision of such passwords. Again, I accept Ms Balit’s evidence in this regard.

Charge 3 – refusal to allow access

275. As to charge 3, Mr Sun says that Mr He’s purpose of preventing the search party from accessing the premises may be inferred from the fact of his refusal to allow Mr Blaxell entry to the premises.

276. Mr Sun also says that Mr He’s purpose of doing so in order to allow him time to destroy certain of “Listed Things” may be inferred from the fact that he took these steps commencing shortly after refusing Mr Blaxell entry.

277. Further or in the alternative, Mr Sun says that Mr He’s refusal of access having the tendency to interfere with the administration of justice arises from Mr He’s deliberate defiance of the Search Order.

278. As to the particulars of charge 3, reliance is placed on Mr Blaxell’s report of 27 November 2019 (Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019 at [20]).

279. Having regard to the factual findings I have made, I am satisfied that this charge is established beyond reasonable doubt. At the very least, by 11.45am, Mr Leung had (according to Mr Blaxell) confirmed that he had advised Mr He that he was required to permit access. Again, the same conclusion follows as to the purpose of preventing access and the tendency to interfere with the administration of justice.

Charge 4 – failure to disclose devices

280. As to charge 4, it is said that Mr He’s purpose of preventing access to data may be inferred from the fact he did not disclose all electronic devices in his possession and the fact that he had (without informing the search party) already taken steps to delete information from three such devices before the search party was allowed entry.

281. Further or in the alternative, Mr Sun says that Mr He’s failure to disclose the whereabouts of devices having the tendency to interfere with the administration of justice arises from Mr He’s deliberate defiance of the Search Order.

282. As to the particulars to charge 4, reliance is placed on Mr Blaxell’s report of 27 November 2019 (Annexure A to Mr Blaxell’s affidavit affirmed on 27 November 2019 at [23], [30], [37]).

283. Again, having regard to the factual findings I have made above, I am satisfied that this charge is established beyond reasonable doubt. My conclusion as to the failure to disclose this device is reinforced by the fact that Mr He performed a factory reset on the device. I make the same findings as to purpose and the tendency to interfere with the administration of justice.

Strike Out Motion and an abuse of process

284. Turning to the Strike Out Motion per se, it may be noted that the ordinary civil standard of proof would here apply.

285. In Gage, I noted (see at [185]) the relevant cases in that context as including Clark First Instance Decision, Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 (Palavi v Radio 2UE), Palavi v Queensland Newspapers and Clark Court of Appeal Decision.

286. In Clark First Instance Decision (it will be recalled, where a cassette and compact disc were destroyed at a time when the proceedings had been adjourned to permit technical analysis of the tape recordings to be undertaken), Johnson J emphasised (at [103]) that the power of the court to stay or dismiss proceedings for an abuse of process was to be exercised “sparingly”. His Honour said (at [104]):

1. Ordinarily, a party is entitled to initiate and continue proceedings with the court determining those proceedings on their merits. Where, however, a party to proceedings intentionally destroys material which is significant to the determination of the proceedings, and such destruction occurs after the proceedings have been commenced, then a clear foundation would appear to exist for the court to call in aid its power to stay or dismiss the proceedings. The court will have in mind the interests of the individual parties to the civil proceedings, but also the protection of the administration of justice and the integrity of the courts and the system of justice generally. Resolution of an application for a stay or dismissal of the proceedings will consider the question whether a fair trial may take place in the absence of the destroyed material even where an appropriate inference may be drawn adverse to the destroying party.

[Emphasis added]

287. In Palavi v Radio 2UE, the destruction of the documents in question occurred after proceedings had commenced. Allsop P, as his Honour then was, said (at [93]) that the “deliberate destruction of discoverable material in knowing defiance of discovery obligations that produces the real risk of impairment to the case of the other side may lead to restrictions on what points litigants can run or to the striking out of all or parts of their claims”. His Honour also referred (at [93]) to the duty under the legislative regime of the Civil Procedure Act2005 (NSW) on those using the courts “to act responsibly, honestly and to further the just, quick and cheap resolution of proceedings”.

288. His Honour concluded (at [94]) that:

1. Here, the fairness of the trial was put in jeopardy by the deliberate and abusive destruction of evidence central to the case rendering further proceedings unsatisfactory in that they would be unfair and unjust to the respondent. The fairness of the trial and whether it has been put at risk require an evaluation of the potential consequence of the abusive conduct and all the other circumstances. The extent of the evaluation depends on the circumstances. The trial has to be fair to both parties and the order must be just to both parties…

[Footnotes omitted.]

289. In Palavi v Queensland Newspapers, the issue arose where the destruction had occurred prior to the commencement of proceedings. There, Basten JA said (at [84]-[85]):

1. At least in the case of deliberate conduct intended to pervert the course of a fair trial, to engage the power to stay proceedings permanently or to strike out a pleading (or proceedings) it is sufficient that the conduct create a real and substantial risk of achieving that effect. The effect is not to be presumed, but neither is the plaintiff to reap the benefit of uncertainty created by absence of the destroyed material.

2. Although it may be more difficult to carry out the necessary evaluations, both of intent and tendency, in respect of conduct occurring before proceedings have commenced, the question will only arise after proceedings have commenced. Accordingly, the dicta in Cowell which suggest that such a test may be difficult to apply should be understood as referring to the evidential basis from which the relevant intention is to be inferred. The objective tendency of the conduct can be ascertained by reference to the circumstances of the proceedings which, ex hypothesi, must have commenced. Indeed, even the objective tendency must be capable of evaluation absent particular proceedings, as is necessary with respect to the crime of attempted perversion of the course of justice. Mason CJ explained in Rogerson at 278:

   “The necessity of proving that an act has a tendency to pervert the course of justice by frustrating or deflecting a possible criminal prosecution and that the act was intended to have that effect does not require evidence that a prosecution for a particular or identifiable offence was in contemplation either by the accused or by investigating officers.”

   290. As I noted in Gage (see at [190]), the reference to the difficulty of carrying out an evaluation of intent and tendency in relation to conduct before the commencement of proceedings was a reference to what was said in British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197 (Cowell), where the Victorian Court of Appeal (comprised of Phillips, Batt and Buchanan JJA) said (at [172]):

3. … The judge here was disposed to accept a “fair trial”’ as constituting the relevant criterion, but when documents are destroyed before the commencement of a proceeding, that test is less than helpful. After all, what is a “fair trial”? According to the defendant, there is a fair trial if, according to the rules of court and the obligations of the parties to the court, the court adjudicates upon the documents put in evidence and the oral testimony of the witnesses during the hearing. Of course what is a “fair trial” must inform any test which is adopted, but it cannot stand in place of one.

   291. Their Honours went on in Cowell to state (at [175]) that:

4. Accordingly, there being no authority directly in point, we consider that this court should state plainly that where one party alleges against the other the destruction of documents before the commencement of the proceeding to the prejudice of the party complaining, the criterion for the court’s intervention (otherwise than by the drawing of adverse inferences, and particularly if the sanction sought is the striking out of the pleading) is whether that conduct of the other party amounted to an attempt to pervert the course of justice or, if open, contempt of court occurring before the litigation was on foot. We say nothing about the drawing of adverse inferences because that is not raised for consideration on this appeal. Nor ... do we express any opinion at all on whether the conduct which was under challenge in this instance, and which the defendant sought to justify by reference to its document retention policy, did or did not amount to an attempt to pervert the course of justice. That it did was not the case raised and considered below and so for the purpose of this appeal it must be taken that at first instance the court was not entitled to impose any sanction on that ground. More particularly it must follow too, contrary to his Honour’s conclusion, that the destruction of documents by the defendant in March-April 1998, and before, was not shown to be in breach of any rules relating to discovery in this proceeding.

   292. In Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303, where the defendant brought an application seeking that the plaintiff’s claim be struck out or dismissed as an abuse of process or stayed permanently on the alleged basis that the plaintiff destroyed critical evidence (namely, a printer) for the purpose of preventing the defendant’s expert from examining that evidence and had thereby deprived the defendant from establishing his counter-claim (that conduct being said to amount to a perversion of the course of justice and/or contempt of court), Chesterman J accepted (at [8]) the submission that “if it be shown that the photocopier was destroyed in order to deprive [the defendant] of critical evidence and prevent him advancing a good arguable the [sic] case the court would intervene” but that the particular order “to achieve that end would depend on the circumstances”.

   293. His Honour found (at [42]) that there was evidence that the photocopier was not destroyed for the alleged purpose and that, in any case, there was some evidence that an inspection of it would not produce anything of relevance.

   294. In Palavi v Queensland Newspapers, Beazley JA (as Her Excellency then was), referring to Allsop P’s remarks in the Palavi v Radio 2UE, said (at [29]):

5. … Although Allsop P’s remarks were made in the context of a failure to comply with discovery (see especially the last sentence at [94]), they incorporate the truism that fairness of proceedings is an essential integer of the administration of justice. How fairness operates in a given case depends upon all the circumstances. Its operation where a case is on foot is different from its operation where proceedings are not on foot but are in contemplation. The central tenet is that the court has ultimate control of its processes. The circumstances and manner in which it will exercise the control will depend upon the court’s application of the principles that have been developed to govern the particular circumstance of the case.

   295. Her Honour later said (at [55]):

1. As is apparent from the principles discussed, the governing rule is that in respect of relevant evidence that is destroyed prior to the commencement of proceedings, proof that the impugned conduct constituted, relevant to this case, an attempt to pervert the course of justice, may attract a sanction. The sanction to be imposed is then a matter for the exercise of judicial discretion. The sanctions range from the drawing of an adverse inference to striking out the claim, the latter sanction being one to be imposed sparingly in an appropriate case.

   296. In Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200 (Arrow Nominees), Chadwick LJ (with whom Ward LJ and Roch LJ agreed) said (at [55]):

2. Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself…

   297. In the present case, the destruction of the electronic data occurred after the commencement of proceedings (and, indeed, after the Search Order had been served).

   298. As to whether there was an attempt to pervert the course of justice, that turns on the factors considered in relation to the Contempt Motion.

   299. However, even in the absence of an intention to pervert the course of justice, it is clear in my opinion that an abuse of process has occurred.

   300. In this regard, I note that proceedings have been held to be an abuse of process where: the Court’s processes are invoked for an illegitimate or improper purpose (see Williams v Spautz (1992) 174 CLR 509 at 529; [1992] HCA 34 per Mason CJ, Dawson, Toohey and McHugh JJ; Rogers v The Queen (1994) 181 CLR 251 at 287; [1994] HCA 42 per McHugh J); the use of the Court’s processes is unjustifiably oppressive to one of the parties or vexatious (Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55); and the use of the Court’s processes in the manner contemplated would bring the administration of justice into disrepute (Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77 per Mason CJ, Deane and Dawson JJ).

   301. The categories of abuse of process are not closed (Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518-520; [2015] HCA 28 (Tomlinson v Ramsey) per French CJ, Bell, Gageler and Keane JJ; Perera v GetSwift Ltd (2018) 263 FCR 92; [2018] FCAFC 202 at [144]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [89] per Gummow A-CJ, Hayne, Crennan and Bell JJ). It has been recognised that the doctrine of abuse of process is fluid and adaptable (Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (Batistatos) at [9] per Gleeson CJ, Gummow, Hayne and Crennan JJ; Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 at [70] per Heydon J).

   302. In UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, Kiefel CJ, Bell and Keane JJ (with whom Gageler J agreed), said (at [1]) that:

3. … The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute …

[Footnotes omitted.]

303. Their Honours noted (at [38]) that the “timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute” (citing Batistatos at [14] per Gleeson CJ, Gummow, Hayne and Crennan JJ; and Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ).

304. Gageler J, agreeing with the plurality, emphasised (at [62]) that in Tomlinson v Ramsey, the doctrine of abuse of process, in its application to the assertion of rights or the raising of issues in successive proceedings, “was there explained to be informed in part by considerations of finality and fairness similar to those which inform the doctrine of estoppel but to be inherently broader and more flexible than that doctrine”.

305. In the present case, I am satisfied to the requisite standard that the conduct of Mr He in deleting the electronic records and data amounted to an abuse of process. He had been served with the Search Order and, at least by the time of deletions made at 11.46am, he had obtained legal advice and he was seemingly seeking to have the orders varied or discharged. He made various false statements (such as the need to have his contact details on the Huawei Mate Pro 20 device over the weekend) and, as I have found, he deliberately “factory reset” the Apple iPhone X at a time when there can be no doubt that he was aware of the Search Order.

306. As to whether, in light of his conduct, a fair trial will be possible (referring by way of example to Cowell at [145]-[156]), I note (as I did in Gage) that in Arrow Nominees, Chadwick LJ said (at [55]):

1. Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself…

   307. I there also noted what was said by Jagot J in Moody Kiddell & Partners Pty Ltd v Arkell [2013] FCA 1066. That decision concerned an application to strike out an amended defence as an abuse of process (that abuse of process having been found to arise from the deliberate destruction of documents relevant to issues in dispute between the parties and which otherwise ought to have been discovered by those respondents). Relevantly, her Honour said (at [26]):

2. The principles include the following:

3. Non-compliance with an order for discovery enlivens the power to strike out the pleadings of a party ([Cowell] at [178]).

4. The power to deny a person the right to rely on their pleading, in whole or part, is exceptional and to be exercised sparingly given the drastic nature of the remedy ([Clark First Instance Decision] at [63] and [147]; see also [Palavi v Radio 2UE] at [93]-[95]).

5. The power exists not to punish the party in default but to ensure the proper administration of justice, in particular to ensure the capacity for a fair trial to be held ([Cowell] at [178]).

6. The power exists whether or not the conduct of the party in default was blameworthy or delinquent ([Clark First Instance Decision] at [86]), but the intention of the party in default is relevant both to a finding of abuse of process and to the drawing of inferences about the potential significance of the destroyed material to the issues in the case ([Clark First Instance Decision] at [76]-[81]).

7. A fair trial does not mean one that is ideal or perfect as trials may be fair even if documents are missing ([Clark First Instance Decision] at [64]).

8. The key consideration to the fairness of the trial in this context requires an assessment of the nature and extent of the prejudice to other parties by reason of the default ([Cowell] at [178]).

9. The question of prejudice involves an assessment of the significance of the destroyed material to the proceeding even allowing for the capacity to draw adverse inferences against the party in default ([Clark First Instance Decision] at [104]).

10. The remedy must be responsive and proportional to the prejudice of the non-defaulting parties ([Cowell] at [188]). Judicial indignation at the affront to justice involved must not be given effect ([Clark First Instance Decision] at [89]).

    308. As adverted to above, in her report dated 31 January 2020, Ms Balit identified four electronic accounts that were unable to be accessed and concluded after inspecting 19 devices that four devices had been “wiped” of relevant information. Ms Balit noted she had not been supplied with the passwords for the Microsoft Hotmail, Apple iCloud, Google Gmail, and Dropbox accounts, rendering them inaccessible. (Further, the Apple iPhone device which belonged to Mr He’s mother-in-law was unable to be inspected because no security PIN was provided to Ms Balit.)

    309. Ms Balit, in her second report dated 31 January 2020, identified that the following four devices returned relevant results to the search terms but that all or some of the results were unable to be analysed due to the deletion of files:

    1. Apple iMac computer – the keyword searches returned relevant results, but the results were identified in fragments of deleted files that were unable to be analysed. Importantly, between the time the Search Order was served and the time the imaging occurred, eight gigabytes of data (approximately 1% of the hard drive capacity) were deleted from this device. There were further files deleted (which could not be identified) from a Google Drive account accessed on the device during the same period.

    2. Apple iPad Pro – this device was factory reset between the time the Search Order was served and the device was imaged. None of the data was able to be recovered.

    3. Huawei Mate Pro 20 – this device was “wiped”, again between the time Search Order was served and the device was inspected.

    4. Apple iPhone X – Ms Balit has confirmed that the “factory reset” of this device resulted in all of the device’s data being lost and unrecoverable.

    310. Ms Balit has said that, because of the above, files relevant to the terms of the Search Order were unable to be produced and inspected.

    311. While the abuse of process constituted by the deletion of the material (absent the finding of contempt of court) would not necessarily support the wholesale striking out of many parts of the defences in the present case (and this would arguably be disproportionate), the striking out of the defences (or otherwise the limitation as the use of evidence) relating to the WeChat conversations would, in my view at this stage, be wholly appropriate. That said, at this stage, I will not embark upon the process of determining what should be struck out of the defences as an abuse of process, pending the sentence hearing for the contempt.

Conclusion

312. For the above reasons, I am satisfied that the charges of contempt have been proved beyond reasonable doubt. I note, again, that had I not been so persuaded, I would nevertheless have found that the conduct of deleting the electronic records was an abuse of process. I will list the matter for directions as to the sentence hearing (and in due course as to the extant motions).

313. I will reserve the question of costs and will defer making any orders in relation to the Strike Out Motion.

Orders

314. I make the following orders:

1. Declare that the first defendant was in contempt of this Court by engaging in the conduct in the circumstances described in each of Charges 1, 2, 3 and 4 of the Statement of Charge annexed to the plaintiff’s notice of motion filed on 18 February 2020.

2. List the matter before me at 8.30am on 30 June 2020 for further directions as to the filing of evidence and listing of the matter for a sentencing hearing in respect of the contempt of court committed by the first defendant.

3. Reserve the question of costs.

**********

Decision last updated: 26 June 2020