Edward Chan v. Technical Waxes (Nz) Ltd

CACV000064/1980

[Application to discharge bail - Order 44A - Evidence of short-trip abroad insufficient to support proposition Defendant intends to leave Hong Kong to obstruct judgment - application allowed]

Coram: Li, J.A., Power & Barker, JJ.

Date of Judgment: 30 June 1980

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JUDGMENT

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Li, J.A.:

1. This is an appeal against an order that the defendant CHAN Yam Yick do give bail in the sum of $500,000 in default of which he would be committed to prison until a judgment decision in a civil action. The appellant CHAN Yam Yick is the 2nd defendant in a civil action against a total of five defendants. The plaintiff in that action alleged that they purchased some goods from the 2nd defendant (the appellant), opened letters of credit in the appellant's favour and that goods were purported to have been shipped abroad to the plaintiff from Hong Kong. It was found that no such goods were ever shipped, the ship that was alleged to have the goods on board never called to Hong Kong. The letter of credit was negotiated by the appellant and the money disappeared.

2. The Defence was that the appellant negotiated the letter of credit through the Oman International Finance Ltd. yet he did not know that the shipping documents were false. In short he was innocent in the whole transaction. That was the general issue between the plaintiff and the appellant in that action.

3. The plaintiff, on the 18th April this year, applied for a warrant under Order 44A of the Rules of Supreme Court on the basis that the appellant was about to leave the Colony. The foundation for this allegation is based on two affidavits. It came from the same source.

4. Mr. Sussex, in his affidavit dated the 18th April said in paragraph 6 that he was informed by Miss Sui Hing Low, an Articled Clerk employed by his firm, that Miss Low was informed by the appellant that it was the appellant's intention to leave Hong Kong for Taipei the following day. Miss Irene Sui Hing Low in her affidavit, dated the 18th April said:

"At a meeting with Mr. Edward Chan (that is the appellant) and Mr. Ho Hoa Meng at the offices of Messrs. Sinclair Roche today, the said Mr. Chan informed me that he would be leaving Hong Kong on Saturday, 19th April 1980 for Taipei, Taiwan. Mr. Chan stated that he would not be returning to Hong Kong until Tuesday, 22nd April 1980."

5. The first ground of appeal is that there is no evidence the appellant was leaving Hong Kong permanently so as to defeat or obstruct the enforcement of any judgment. Order 44A rule 1 provides that

"If in any action not being an action for the recovery of immovable property the defendant is about to leave the jurisdiction of the Court, or has disposed of or removed from the jurisdiction of the Court his property or any part thereof, the plaintiff may, either at the institution of an action or at any time thereafter until final judgment, apply to the Court to call upon the defendant to furnish sufficient security for his appearance to answer any judgment that may be given against him in the action."

Rule 2 provides that

"the Court may make an investigation if considered necessary and if the Court is of the opinion that there is a probable cause for believing that the defendant is about to leave the jurisdiction ........ by reason thereof the execution of any judgment that may be given against him in the action is likely to be obstructed or delayed, it shall be lawful for the Court to issue a warrant to the bailiff enjoining him to bring the defendant before the Court so that he may show cause why he should not give security for his appearance to answer any judgment that may be given against him in the action."

6. In the Court below the learned judge found that there was probable cause to believe that the appellant was about to leave the Colony so as to obstruct or delay at the enforcement of any judgment that might be awarded against him. He ordered that the appellant furnish bail to the sum of $500,000 or be committed to prison.

7. There are other grounds of appeal and, arising therefrom, authorities have been cited to us. In view of our decision it is not necessary to consider the other grounds of appeal other authorities cited in support or opposition.

8. There was no evidence to show that the appellant was about to leave the Colony in any sense of permanence. Perhaps the only fact that induced the learned trial judge to come to the conclusion that he might leave the Colony to defeat or obstruct the enforcement of the judgment was that there appeared to be a strong case against the appellant in the civil action. There is no other ground that has been relied upon by the plaintiff except the affidavits and the strength of their case. Even if the allegations of Miss Irene Low are accepted in toto it only goes to show that the appellant would be leaving Hong Kong on the 19th April for short trip returning on the 22nd April. That is not leaving permanently the Colony of Hong Kong. There is, currently, a police investigation and the appellant is now on a court bail of $35,000 cash and $35,000 surety. There is another civil action of the Similar nature pending against the appellant. However, these do not indicate that the appellant is about to leave Hong Kong permanently. At the moment since the appellant as he is on court bail he has been put on the Stop List. He has to satisfy the Court that he would make an appearance in court to face the criminal charges.

9. In the circumstances we feel that there is not sufficient evidence to lead us or, indeed, should have led the trial judge to come to the conclusion that he is about to leave the Colony to defeat the course of justice. For these reasons the appeal is allowed and consequently the appellant is discharged.

Representation:

Ronny K.W. Tong (Johnny T.K. Cheng & Tong) for appellant

R.J. Faulkner (Sinclair Roche) for respondent