Pong, Seong Teresa and Others v. Chan Norman
Read the full judgment text of HCA 627/2010 on BabelCite. This High Court CFI judgment was delivered on 19 April 2018.
1. This is an application by the judgment creditors to ask the court to imprison the judgment debtor under Order 49B rule 1B (1) (a) to (c) of the Rules of the High Court (“O.49 r.1B (1) (a) to (c) RHC”).
Cited by 7 cases · Cites 5 cases
|
HCA 627/2010 [2018] HKCFI 788 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE HIGH COURT ACTION NO 627 OF 2010 _________________________
_________________________ DECISION AND REASONS _________________________ APPLICATION 1.This is an application by the judgment creditors to ask the court to imprison the judgment debtor under Order 49B rule 1B (1) (a) to (c) of the Rules of the High Court (“O.49 r.1B (1) (a) to (c) RHC”). BACKGROUND 2.Parties to the disputes were neighbors at a building at Kardoorie Hill, Kowloon. For the present purpose, it suffices to say that the judgment creditors (the plaintiffs) commenced 2 actions (the present action was called by the Trial Judge as “Harassment Action” and, HCA 726/2010, “Nuisance Action”) against the defendant herein (“Mr. Chan”)/his mother. After trial, the judgment creditors won and the Trial Judge commented Mr. Chan as follows.
3.In the Harassment Action, the Judge granted an injunction against Mr. Chan from assaulting, harassing, threatening or pestering the plaintiffs, including shouting, speaking obscenities or foul language towards them, taking photos of theme without consent, causing damage to their residence and spraying or applying any paint thereof. 4.In the Nuisance Action, the Judge also granted an injunction against Mr. Chan and his mother from causing or allowing loud thumping noises, excessive and unreasonably loud television or radio noises, and so forth, affecting the plaintiff therein. 5.The Judge also awarded costs to the judgment creditors. 6.Mr. Chan and his mother took up the matter to the Court of Appeal but lost them again on 11 March 2015 (with reasons handed down on 19 March 2015). 7.The judgment creditors thereafter sought to recover their costs and parties agreed on 30 August 2016 the sum of $1,500,000 to settle them.
8.The total sums of $200,000 in both (c) and (d) (wherein Mr. Chan and his mother are defendants and appellants above was paid, but not (a) and (b) in the amount of $1,300,000 (wherein only Mr. Chan is defendant and appellant). 9.The judgment creditors sought different ways to try enforce them, including injunction, prohibition orders and examination. 10.Regarding the examination, warrant of arrest was issued against Mr. Chan for his failure to attend court. On 7 March 2017, he (under bailiff custody) was brought before Madam Justice Barns. After hearing from parties, the learned Judge made the usual discovery directions and warning against Mr. Chan as well as adjourning the examination to be dealt with by a Master. 11.The examination was thereafter conducted before me on 20 April 2017 and 21 August 2017. The judgement creditors thereafter issued the present summons seeking to imprison Mr. Chan. Other than the transcripts of the examination, parties also specifically prepared the following documents.
12.Parties appeared before me on 22 March 2018. Mr. Vincent Chiu of counsel acted for the judgment creditors, and Mr. Chan appeared in person. Having heard from them, I adjourned my decision to be given with reasons handed down today. Here it is. 13.Mr. Chiu submitted that all the 3 grounds under O.49B r.1B (1) RHC are established.
Mr. Chiu further submitted that this court should imprison Mr. Chan. The judgment creditors were willing to pay the fee as per O.49B r.2 RHC. 14.As to Mr. Chan, he said that the accusations against him were factually untrue. The application was based on misstated exaggerated or speculative facts and imaginations. It should be dismissed. Mr. Chan also prayed this court to accept his apology and regret not performing excellently or accurately as far as court proceedings were concerned. THE LAW 15.The applicable law relating to O49B r.1B (1) RHC is clear. The basic principles can be found at pages 1010-1011 of the Hong Kong Civil Procedure 2018.
16.With the above principles in mind as well as the evidence and submissions before me, I will see if the 3 grounds or any of them is established. Subject to it, I will also see whether discretion should be exercised to imprison Mr. Chan in the circumstances, and if so, for how long? IS MR. CHAN ABLE TO SATISFY THE JUDGMENT DEBT WHOLLY OR PARTLY? 17.Mr. Chiu submitted, according to the authority of Glory Link Investment v Young Pui York [2016] 4 HKC 157, the debtor must have existing assets instantly and currently available to him to pay wholly or partly the judgment, and even on Mr. Chan’s own evidence, it was apparent that he had the means to do so. 18.Mr. Chiu referred to the evidence of Mr. Chan. He was able to raise 16.9 million from his family members to maintain his lavish style of living. During examination, Mr. Chan acknowledged that, on some occasions, he was able to raise funds without mentioning any reasons. He is still borrowing money from them. Hence, Mr. Chan has the funds instantly and currently available to him to repay partly or wholly of the judgment debt. 19.Mr. Chan disagreed and explained in his affirmation in opposition that:
20.Upon consideration, bearing in mind that the standard of living goes to ‘beyond reasonable doubt’ in the issue, I do have some reservation on this ground. Indeed, such question was indeed raised at the examination:
21.With the above, I agree with Mr. Chiu that the evidence of Mr Chan was not satisfactory. He was guarded. He was evasive. He was shifting. However, it does not necessarily follow that the family members/friends of Mr. Chan or any of them are/is willing to lend him money (even if so, for how much?) to repay the judgment debt or any part thereof. HAS MR. CHAN DISPOSED OF HIS ASSESTS TO AVOID PAYING THE JUDMGENT DEBT, WHOLLY OR PARTLY? 22.Mr. Chiu said that Mr. Chan had disposed of his assets to avoid paying the judgment debt, in whole or in part. He put this ground under 2 heads.
23.Mr. Chan disagreed and explained in his affirmation of opposition.
24.Upon consideration, I am not satisfied that (a) has been proved. However, as to (b), I refuse to accept the explanations from Mr. Chan. There can be no doubt that he only transferred the shares in the clinic to avoid the same being executed by the judgment creditors.
HAS MR. CHAN FAILED TO MAKE A FULL DISCLOSURE AND/OR ANSWER QUESTIONS? 25.Mr. Chiu said that Mr. Chan had failed to make a full disclosure. It was deliberated and intentional. It also frustrated the effort of the judgment creditors in locating his assets. Mr. Chan failed to meet the disclosure obligations under the order of Madam Justice Barns. He further failed me when I made the order during the examination. Last but not least, Mr. Chan also refused to answer questions put to him in particular his refusal to tell the court his place of residence. 26.Mr. Chan did not agree. He said that he had not failed the Judge. He supplied what he had. He explained that he had lost some of the documents during his change of residence. He also did not fail me as he had signed and returned the authorization letters to the lawyers for the judgment creditors. It was not him who omitted the ID card number. He also answered every question during the examination to the best of his ability. 27.Upon careful thought, again, with the high standard of proof required in the present application, I do not consider that Mr. Chiu has established that Mr. Chan must have failed to disclose under the order of the Judge. There was some disclosure of documents. There was an affidavit explaining why he could not do better. Although Mr. Chan did not disclose details of his moving and they were also not forthcoming from the questions put to him during examination, the judgment creditors did not have any evidence to show that Mr. Chan was lying. Similarly, one may dislike or disbelieve (on balance) the oral answers given by Mr. Chan at examinations, I do not consider that Mr. Chan could be said to have failed to answer questions put to them. In the end, Mr. Chan did provide his address at Fanling. 28.Nonetheless, in relation to the order of discovery given by me during the examination, it is entirely different matter. I have no doubt that Mr. Chan fails me in it. He not only did not comply with his obligation to obtain and supply with the documents, but also went on to “obstruct” the practical way to do so as directed by the court. 29.Upon discussing with both parties, on 20 April 2017 and in the middle of the examination, I ordered that:
30.Mr. Chan was invited to sign the authorisation letters at the examination (Appendix I to III hereto) because they were simple and straight forward. Copies of these documents referred thereto could be made available before the court at the resumed examination even though they were lost or misplaced as alleged by Mr. Chan. He asked me for time to consult legal advice before signing. I agreed. 31.However, afterwards, he came back to the solicitors of the judgment creditors with additional wordings (which was a demand to the relevant third party to send to him by “registered mail” “certified true copy” of “all past present and future correspondence” with solicitors for the judgment creditors). In my view, it is an unreasonable demand which only aimed at preventing the judgment creditors to obtain the documents showing the financial position of Mr. Chan. Of course, one does not forget that Mr. Chan also failed to fill in his ID card number thereon. (Appendix IA to IIIA hereto). EXERCISE OF DISCRETION? 32.With the above, Mr. Chiu has succeeded in establishing 2 grounds, O.49B r.1B (1) (b) and (c) RHC. Upon consideration of the circumstances of the present case, including in particular the followings, I take the view that discretion should be exercised to imprison Mr. Chan.
FOR HOW LONG? 33.By the list of authorities from Mr. Chiu, he adduced a number of cases under O.49B r.1B RHC. 34.In Osk Asia Futures Limited v Lam Chin Bin Stanley (HCA 10335/2000, unreported), on 13 July 2002, Master K. Y. Chan (as he then was) found beyond reasonable doubt that the debtor failed to make a full disclosure of all his assets and investment. By breach of O.49B r1B(1)(c) RHC, the learned Master imprisoned the debtor for 1 month. 35.In Ip Suk Ching v Luk Kam Heung (HCA 1215/2006, unreported), on 10 December 2008, Master Hui ruled, inter alia, that the debtor failed to disclose a number of documents under a consent order. As a result, there was a breach of O.49B r.1B (c) RHC and the learned Master imposed an imprisonment order for 1 month. 36.In Timekeeping System Inc v Stephen John Oberlander & another (HCA 612/2007, unreported), on 7 August 2009, Master Ko (as he then was) found that the debtor in that case disposed of the proceeds ($162,000) from sale of certain shares to avoid satisfying the judgment debt ($1.8 million). Having taken into account of the circumstances of the case, including the age and health condition of the judgment debtor, the learned Master ordered the debtor to be imprisoned for 14 days. IMPRISONMENT FOR 1 MONTH 37.Mr. Chiu further submitted that the present case was not the worst case of this type. I agree but it is still a bad one. Mr. Chiu proposed a period of 2 months if all 3 grounds would be established. He succeeded in 2 grounds. Within them, I do not entirely agree on all the allegations of the judgment creditors. With the benefit of the above authorities and bearing in mind the particular facts of the present case, including those in paragraph 32 above, I take the view that a total period of imprisonment for 1 month appropriately reflects the conduct of Mr. Chan having found by this court. I so order accordingly. I also fix the support and maintenance allowance at the rate of $725 a day pursuant to O.49B r.2 RHC. COSTS 38.I see no reason why Mr. Chan should not pay costs of the examination. There will be an order nisi that Mr. Chan do pay costs of the judgment creditors for the application, including counsel fee for the hearing on 22 March 2018, to be taxed, if not agreed. CONCLUSION 39.To conclude, I make the following orders:
Mr Vincent Chiu, instructed by Y. S. Lau & Partners, for the judgment creditors The judgement debtor appeared in person |
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCA 627/2010