Bank of India v. Murjani Industries (HK) Ltd and Another

CACV000086A/1989

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Coram: Hon. Cons, Ag. C.J., Clough and Hunter, JJ.A.

Date of hearing: 19 July 1989

Date of Judgement: 19 July 1989

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J U D G M E N T

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Clough, J.A.:

1. On the 22nd May 1989, on the application of the plaintiff bank in these proceedings, Master Perrior made a prohibition order against the second defendant under section 21B of the Supreme Court Ordinance (Cap. 4) prohibiting him, subject to extension or renewal, from leaving Hong Kong until the 22nd June 1989 or such time as he should day or secure payment of US$10,798,955.91. That order has been extended once and the extension is now in force.

2. In the same proceedings the plaintiff has previously obtained a prohibition order against the second defendant. That order expired on the 23rd May 1939 having been renewed twice to the full extent permitted under section 21B(5) of the supreme Court Ordinance.

3. Master Perrior's order was the subject of an appeal to Godfrey J. which was dismissed on the 29th May 1989.

4. The second defendant now applies, under Rule 2(b) of the Order in Council regulating appeals from this court to the Privy Council, for conditional leave to appeal to the Privy Council from the judgment of this court delivered on the 22nd June 1989 dismissing his appeal from the order of Godfrey J.

5. Rule 2(b) confers a discretion on this court to grant leave to appeal to the Privy Council from inter alia an interlocutory judgment of this court if in its opinion the question involved in the appeal is one which by reason of its great general or public importance, or otherwise, ought to be submitted to the Privy Council for decision.

6. The principal question which the second defendant seeks to raise if given conditional leave concerns the freedom of movement of the subject. It is whether the jurisdiction of the court to make a prohibition order under section 21B of the Supreme Court ordinance prohibiting a person from leaving Hong Kong can be made only once in any one action, so that there can be no further order or orders after a previous order has been made under section 21B(1) and extended or renewed for the maximum period permitted under section 21B(5)?

7. We consider this question is sufficiently serious and general to warrant our giving conditional leave to appeal on the footing that it is a question of great general and public importance.

8. The question of the efficacy of an appeal by the second defendant has been canvassed. It may well be that there will be no order in effect by the time the Privy Council is seised of the matter. It may also be that a successful appeal could result in a successful claim for compensation by the second defendant under O. 44A rule 5. Having decided that the principal question to be raised on appeal is within Rule 2 (b) we do not propose to pursue the matter of efficacy which is clearly uncertain.

9. Having decided to grant conditional leave to appeal on the basis of the principal question, it becomes unnecessary to deal with a further question relating to stare decisis which was relied upon by the second defendant.

10. Conditional leave on appropriate terms under Rule 4 as to security for the prosecution of the appeal and costs, and as to time for the preparation and despatch of the record, is accordingly granted.

Representation:

Michael Thomas, Q.C. & R. Faulkner (Johnson, Stokes & Master) for 2nd Defendant/Applicant.

Robert Tang, Q.C. & B. Barlow (Wilkinson & Grist) for Plaintiff/Respondent.