Sami Said a Alangari v. Cheah Hanson also known as Hanson Cheah

HCA 2127/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2127 OF 2012

__________________

________________________

________________________

DECISION
________________________

1.The defendant is a litigant in person. By a summons dated 26 August 2015, he applies for variation of a Mareva injunction order made against him on 23 November 2012 (filed 30 November 2012) by Deputy Judge Lok (as he then was) upon the plaintiff’s application. The said order was in fact the continuation of an earlier ex parte Mareva injunction order granted by the same judge. The Mareva orders freeze the defendant’s assets up to the value of US$3,070,000. Two groups of bank accounts of the defendant were particularly frozen: (i) Hongkong and Shanghai Banking Corporation (“HSBC”) accounts and (ii) Standard Chartered Bank (Hong Kong) Limited (“SCB”) accounts.

2.By the Order dated 23 November 2012, the Court allowed, inter alia, the withdrawal of HK$30,000 per month from the HSBC accounts as living expenses for the defendant.

3.After successive applications for extension of time by the plaintiff, he eventually filed his Statement of Claim on 22 April 2013.  The defendant also made two applications for extension of time and eventually he filed his Defence on 12 August 2013.  Thereafter, the plaintiff took no steps in the proceedings for nearly two years before the defendant issued the present summons for variation.

4.By the present summons, the defendant applies for: (i)  access to a safe-deposit box at Hang Seng Bank North Point Branch under account no. 292-22976; (ii) payment of the monthly living expenses from the SCB accounts.  In a short affirmation, the defendant explained that he wanted to retrieve “documents which are proof of citizenship certificates, birth certificates and other related identification papers belonging to the family of the defendant”.  At the hearing, he also explained that the funds in the HSBC accounts had been exhausted over these 2 years of drawing of monthly living expenses. He therefore wishes to draw from the SCB accounts.

5.In my view, it is shocking that for two years, the plaintiff has taken no steps in pursuing the action.  A plaintiff who has obtained a Mareva injunction is obliged to press quickly with his action.  This court has jurisdiction to set aside a Mareva injunction where a plaintiff is guilty of delay in bringing an action on for trial.  It is an abuse for the plaintiff to sit on the injunction and then not to prosecute the action.

6.If the defendant has, by his summons, applied for the discharge of the Mareva injunction orders against him on the ground of delay and abuse on the part of the plaintiff, I would no doubt be very sympathetic to such application.

7.I have even considered whether I could exercise that power on my own motion.  Unfortunately, under Order 1B rule 2(3), The Rules of The High Court, Cap. 4A, before exercising such power on my own motion, I should give the plaintiff at least 3 days’ notice so that he can have opportunity to make representations.  I am not the judge originally assigned to hear this matter.  By the time it reached me, there was insufficient time for me to comply with Order 1B rule 2(3).  In the circumstances, I can only indicate to the defendant that he can consider issuing a summons to seek for the discharge of the injunction on the ground of undue delay by the plaintiff in the prosecution of the action.

8.I therefore confine myself to dealing with the defendant’s application for variation today.

9.The plaintiff does not oppose the application for retrieval of those items mentioned by the defendant in the summons.  The only issue is on how to document the contents of the safe-deposit box and to prevent removal of valuables.  As for the drawing of living expenses from the SCB accounts, the plaintiff opposes on the ground that there is no supporting documentation or evidential basis.  Miss Nisha Mohamed, counsel for the plaintiff, argues that there is no indication of change of circumstances in the defendant’s affirmation.  She also submits that the plaintiff has a proprietary claim.

10.The defendant acts in person.  His affirmation did not mention why the original allowance of drawing HK$30,000 for living expenses from HSBC accounts is not sufficient.  At the hearing, he explains that the money in the HSBC accounts has been exhausted.  After checking the original amount in the HSBC accounts which was around HK$800,000 as of 23 November 2012, and discounting HK$100,000 allowed for legal expenses, it can be seen that the remaining funds would have been exhausted in 23 months.  Miss Mohamed then fairly accepts that and does not maintain the objection.

11.As for the safe-deposit box, Miss Mohamed has put forward some directions so as to ensure that no valuables would be taken from the safe-deposit box. The defendant accepts them save as to the number of days for prior notice to be given to the plaintiff.  I agree with the defendant that 2 clear days’ notice would be more than sufficient.  The notice can be given by the defendant in form of an email to “[email protected]” as provided by the plaintiff’s solicitors.  I also refuse to allow the plaintiff to have paragraph 6 of the draft directions.  The documents retrieved by the defendant would contain personal data which the plaintiff has no right to take copy.

12.I therefore order that:

(1) The injunction orders dated 14 November 2012 and 23 November 2012 granted by Deputy Judge Lok be varied in that:-

(a) The defendant be entitled to draw a sum of HK$30,000 as living expenses from his bank accounts with Standard Chartered Bank (Hong Kong) Limited under account numbers 368-1-114425-5, 368-0-039357-7 and 368-1-114430-1;

(b) The safe deposit box at Hang Seng Bank account number: 292-22976 (“the safe deposit box”) be opened only in the presence and supervision of the plaintiff's solicitors or representatives or staff;

(c) The exact nature and contents of the safe deposit box be ascertained in the presence of the plaintiff's solicitors or representatives or staff;

(d) A full inventory of all items inside the safety box be obtained and photos taken by the plaintiff's solicitors or representatives or staff of all items contained therein;

(e) The defendant do give the plaintiff's solicitors at least 2 clear days’ notice of his intention to open the safe deposit box (such notice can validly be given by an email to “[email protected]”), so the plaintiff's solicitors or representatives or staff can supervise the defendant, to take an inventory of all items and to permit the defendant to remove items limited to (1) proof of citizenship certificates, (2) birth certificates and (3) other related identification papers belonging to the family of the defendant, subject to the plaintiff's solicitors or representatives or staff checking the specified documents and permitting such removal; and

(f) The defendant is the only person who has access and the right to remove the (1) proof of citizenship certificates of the defendant, (2) birth certificates and (3) other related identification papers belonging to the family of the defendant from the safe deposit box under the supervision and with the permission of the Plaintiff's solicitors or representatives or staff.

(2) Costs of this application be the plaintiff’s costs in the cause.

Miss Nisha Mohamed instructed by A M Mui & Kwan for the Plaintiff

Defendant, unrepresented, appeared in person