Camel Group Hongkong Investment Trading Co Ltd v. Leading International Group (HK) Ltd and Others

HCA 3115/2016

[2018] HKCFI 2256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3115 OF 2016

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Before:  Deputy High Court Judge Le Pichon in Chambers

Date of Hearing:  26 September 2018

Date of Decision:  26 September 2018

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D E C I S I O N

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1.This is the plaintiff’s application by summons dated 14 September 2018 for an order that the surplus subject to the charging order nisi currently held by the Bank be transferred to the plaintiff.

2.On 29 November 2016 the plaintiff obtained a Mareva injunction restraining the 2^nd defendant from dealing with his assets to the extent of US$9,209,500 (“the sum”).  The writ for recovery of the sum against, inter alia, the 2^nd defendant was issued on the same day.

3.Service of the writ and injunction as well as other relevant court documents was effected on 28 February 2018.

4.The 2^nd defendant who was detained at a detention centre in China never entered an acknowledgement of service.  A default judgment was then obtained against him on 29 June 2018.

5.A property owned by the 2^nd defendant and mortgaged to Chong Hing Bank Ltd has been sold by the mortgagee bank and surplus proceeds (“the surplus”) are held by it as trustee for the 2^nd defendant. The charging order nisi was granted by Master Hui on 10 August 2018 who ordered that cause be shown by the 2^nd defendant at today’s hearing.

6.While neither the charging order nisi nor the present summons has been served on the 2^nd defendant, the plaintiff submits that Order 65, rule 9 applies.  It reads:

“ 9. Where by virtue of these rules any document is required to be served on any person but it is not required to be served personally or in accordance with Order 10, rule 1(2), and at the time when service is to be effected that person is in default as to acknowledgment of service or has no address for service, the document need not be served on that person unless the Court otherwise directs or any of these rules otherwise provides.”

7.Neither the charging order nisi nor the summons requires personal service.  The 2^nd defendant is in default as to service.  Although service of judicial documents had been successfully effected at the end of February 2018, a subsequent request made to the High Court on 24 May 2018 was unsuccessful.  According to the reply dated 22 June 2018 from the detention centre where the 2^nd defendant had earlier been served, the 2^nd defendant was taken back by the “case-handling unit” on 10 May 2018 with no further details.

8.It should be mentioned that the bank also has made several unsuccessful attempts to contact the 2^nd defendant.

9.The bank has a pending application (in HCMP 1058/2018) to pay the surplus into court but it has no objection to the plaintiff’s application for a transfer of the surplus to the plaintiff subject to the deduction of legal costs it has incurred in its application in HCMP 1058 (“the net surplus”).

10.In the circumstances, I am satisfied that the 2^nd defendant’s whereabouts are unknown.  As there is no court order requiring service, I agree that Order 65, rule 9 applies and service is not required.

11.Accordingly, the charging order is made absolute with an order that the net surplus be paid to the plaintiff.

Mr Adrian Lai, instructed by King & Wood Mallesons, for the plaintiff

The 2^nd defendant was not represented and did not appear

Anthony Chiang & Partners, for the Trustee of the Judgment Debtor, absent