Sano Screen Manufacturers Ltd. v. J & R Bossini Trading Ltd.

CACV000725/2001

CACV 725/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 725 OF 2001

(ON APPEAL FROM HCA 12351 OF 1998 AND HCA 12352 OF 1998
(CONSOLIDATED))

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Coram: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 20 July 2001

Date of Judgment: 20 July 2001

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J U D G M E N T

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Hon Rogers VP:

1.This is an appeal from a decision of Chung J given on 12 March 2001.

2.The application before Chung J was an appeal from the master. The master had ordered that Mr Law Ka Sing, a former director of the judgment debtor J & R Bossini Trading Limited, should attend before a master and be orally examined under the provisions of Order 48 of the Rules of the High Court as to the debts which are owing by the judgment debtor and as to whether the judgment debtor has any and what other property or means to satisfy a judgment debt entered on 16 June 2000. The order of the master also required Mr Law to produce any books or documents in his possession or power relating to the judgment debtor's means and assets.

3.This is, therefore, an appeal against the exercise of a discretion by the court below. In the circumstances, it is necessary for the appellant to show that the court below has either applied wrong principles of law or misapprehended the facts or otherwise reached a decision which was clearly wrong.

4.In his skeleton argument, Mr Cooney on behalf of the appellant conceded that Mr Law does come within the terms of Order 48 since he was, at the relevant time, a director of the company concerned.

5.In his oral argument Mr Cooney attempted to resile from that position. It was a little difficult to discern the point being taken. But, Mr Cooney's argument was that insofar as Order 48 speaks of an officer of the company, it relates to a person who is actively engaged in the management or direction of that company. When pressed further, Mr Cooney said that the person had to be actively engaged at the time of the application. If that argument were correct, it would mean that the judgment cited in the Hong Kong Civil Procedure at 48/3/4 Société Générale du Commerce et de I'industrie en France v Johann Maria Farina & Co [1904] 1 KB 794 were wrong. That was a case which involved the examination of former directors of a company which was then in a liquidation. The Court of Appeal had no hesitation in saying that the order, which for present purposes is the same as the Hong Kong Order, applied to former directors. That case was referred to by Hunter J in the case of Toppan Printing Co Ltd v Champion Dragon Development Ltd [1986] HKC 371 specifically at page 373.

6.In my view there is nothing in this point. At the time when the facts took place which gave rise to the judgment, Mr Law was a director of this company. He is now termed "the president of the group" of which this company forms part. In the holding company's annual report he is described as being responsible for the overall management and strategic planning of the group. On behalf of Mr Law, it is said that he does not have any of the company's documents in his possession and he has no memory of the events. It is said that there are other persons, who are still directors of the company, who were intimately involved in the relevant events and that they should be questioned with a view to giving the information.

7.In my view the fact that there may be other people who could also give relevant information is only one factor which a court may take into consideration. It is by no means an overriding factor. In this case the judge was well aware that Mr Law was no longer a director of the company but his intimate connection with the defendant cannot, in my view, be denied. The defendant is a subsidiary within the group of companies held by Bossini International Holdings Limited. As I have said, Mr Law is the president of that group.

8.In my view the judge was well justified in considering that Mr Law might be able to give relevant evidence relating to movement of the judgment debtor's property and assets within the Bossini group and as to the relationship of the judgment debtor to the other companies. It may well be that following the examination others would have to be examined, as well, but that is of little consequence. In my view this appeal has no merit and falls to be dismissed.

Hon Le Pichon JA:

9.I agree with the judgment of the Vice-President.

Representation:

Mrs Dora K H Chan, instructed by Messrs Fred Kan & Co., for the Plaintiffs/Respondents

Mr Nicholas Cooney, instructed by Messrs Charles Yeung Clement Lam Liu & Yip, for Mr Lam Ka Sing, a former director of the Defendant/Appellant