The Hong Kong and Shanghai Banking Corporation Ltd. v. Cheung Chan Lam Construction Co. Ltd.

HCA002155/1999

HCA 2155/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2155 OF 1999

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Coram : Godfrey, J.A. in Chambers (sitting as an additional Judge of the Court of First Instance)

Date of Hearing : 10 August 1999

Date of Judgment : 10 August 1999

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J U D G M E N T

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Godfrey, J.A. :

1. The defendant here has raised a number of objections to the plaintiff's claim, one at least of which cannot, in my opinion, be disposed of on this application for summary judgment.

2. This objection raises a point on section 9 of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23. Section 9 enables an assignee to sue in his own name to recover a debt under an assignment in writing "of which express notice in writing has been given to the debtor". The purpose of this requirement is of course to bring it home to the debtor that he must now pay the assignee, not the assignor.

3. In the case of informal notices, it is clear from all the authorities that this is the purpose of the notice. It cannot be any different in the case of a formal notice. Reference may usefully be made in this connection to Halsbury's Laws of England, 4th Edition, Vol. 6, Title "Choses in Action", paragraph 48 and to the cases cited in note 2 to that paragraph.

4. Here, the defendant argues that section 9 requires the notice (if it is to be a good notice) to be given in Chinese, or, possibly, in English and Chinese, or, if given in only one of these languages, to be given in whichever language does in fact bring its purpose home to the debtor.

5. This is, so far as I am aware, a novel question, free from authority, and raising significant policy considerations, with much to be said on either side. I have no doubt that it is unsuitable for determination under Order 14 of the Rules of the High Court. I have considered whether it might be suitable for determination under Order 14A instead, but I am not satisfied that a determination of the question, in the circumstances of this case, will decide the entire matter, even if that course might otherwise have been appropriate.

6. Accordingly, I propose to say no more about the matter but simply to give the defendant unconditional leave to defend the action. I propose to order that the costs be costs in the cause.

Representation:

Mr. Daniel Wan instructed by M/s. Johnson Stokes & Master for Plaintiff

Mr. J.J.E. Swaine instructed by M/s. Tsang, Chan & Woo for Defendant