Lincoln International Ltd v. Seymour Feldstein

HCA001324/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 1324 OF 1973

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Coram: Blair-Kerr, S.P.J.

Date of Judgment: 7 June 1973

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JUDGMENT

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1. In December 1971 and January 1972 Cordine International Corporation (hereinafter referred to as "Cordine") placed with the plaintiffs orders for merchandise, the total invoice value of which was US$77,615.60. The merchandise was subsequently supplied by the plaintiffs to Cordine. Details of the invoices and the terms on which it was purchased are as follows :-

2. In April 1972, the defendant, who is President of Cordine, informed the plaintiffs' manager (Mr, Prior) that Cordine was unable to pay for the merchandise; and in August 1972 the defendant, as President of Cordine, signed 5 promissory notes each for US$14,386.98 [totalling US$71,934,90] in favour of the plaintiffs; and he personally endorsed each of the notes as guarantor. The notes matured on 1st, 8th, 15th, 22nd and 29th December 1972; and were made payable at Long Island Trust Co., Garden City, New York. They were given by the defendant to the plaintiffs by way of collateral security for the monies due on invoices 4917, 4928, 4940, 5072 and 5173.

3. In October 1972, the defendant signed a further 5 promissory notes each for US$14,386.98. Again, he signed the notes as President of Cordine and endorsed each note as guarantor. The notes matured on the same dates viz. 1st, 8th, 15th, 22nd and 29th December 1972. The intention was that they should replace the 5 notes signed in August 1972. The reason given by the defendant was that the bank account of Cordine had been transferred from Long Island Trust Co., Garden City to Long Island, International Bank of Hicksville.

4. On 21st November 1972 (i.e. before the due dates of any of the 5 promissory notes), the plaintiffs and 2 other Hong Kong companies [viz. Manning Trading (H.K.) Co. and H. Cheong-Leen & Co. (H.K.) Ltd.] instituted proceedings in New York against the defendant, Cordine, and 2 other corporations for US$136,315.52. According to the summons issued by the American court, the object of the action was

"to recover payment of promissory notes and bills of exchange; to require defendants to account for fraudulent transfers of assets; and to recover damages for fraud."

It would appear that in this one action the plaintiffs were suing Manning Trading (H.K.) Co. in respect of US$48,655.92 due on various bills of exchange, Cheong-Leen & Co. in respect of US$10,043.20 due on another bill of exchange, and the amounts due to the plaintiffs on the 9 invoices viz. US$77,615.60. These 3 figures total US$136,314.72. The small discrepancy between that figure and the figure on the U.S.A. summons (viz. US$136,315.52) would appear to be due to a small arithmetical error. However, according to an affidavit sworn by the defendant's solicitor on 22nd December 1972, it appears that the plaintiffs' New York solicitor informed him that the plaintiffs also intended to sue on the 5 promissory notes falling due on 1st, 8th, 15th, 22nd and 29th December 1972. At that stage the first 3 promissory notes had been presented for payment and had been dishonoured.

5. On 19th December 1972, the plaintiffs instituted an action in Hong Kong (O.J. 3249/72) in which they claimed as against the defendant as guarantor and endorser of the first 3 promissory notes the sum of US$43,160.94. It appears that the plaintiffs cabled their New York solicitor requesting him to delete from the New York proceedings the claim in respect of these 3 promissory notes which fell due on 1st, 8th and 15th December.

6. The defendant, who resides in the U.S.A., was in Hong Kong at this time on business; and on 19th December the plaintiffs applied to bring under o.44A for a warrant to issue requiring the bailiff to bring the defendant before the Court to show cause why he should not give security for his appearance to answer any judgment that may be given against him. In the supporting affidavit, it was alleged that the defendant had told Mr. Prior that he was about to leave the Colony and that he had no intention of paying the amount due under the 3 promissory notes.

7. The defendant was brought before me on 20th December to show cause why he should not give security for his appearance to answer any judgment that may be given against him in the action. The defendant failed to show such cause and under r.3(2) of 0.44A, I ordered him to give bail in the sum of US$43,000 for his appearance at any time when called upon while the action is pending and until the execution of any judgment that may be given against him in the action. But, as a temporary measure, provided he surrendered his passport to the bailiff, I agreed to release him till 2.30 p.m. on 21st December upon his depositing with the Court nominal bail of HK$500.

8. On 21st December the parties agreed that this nominal bail should be extended to 27th December to enable the defendant to make arrangements for the bail of US$43,000; and on 27th December, the parties again agreed that there should be a further adjournment to 29th December on the same terms at which time, it was anticipated, counsel for the defendant would ask me to review my order of 20th December made under r.3(2).

9. As regards the surrender of the passport, I feel bound to say that the defendant behaved less than honestly. First of all he tried to "fool" the bailiff by handing him an expired passport. When the bailiff told him that this was unacceptable, he then surrendered his current passport; but he immediately, asked the U.S. Consul-General in Hong Kong to provide him with another one. I did not accept his assertion in evidence later that he had no intention of departing from Hong Kong. I have no doubt but that he would have left the jurisdiction if steps had not been taken to prevent him doing so.

10. Be that as it may, he gave his solicitor certain instructions, the result of which was that on 22nd December 1972 another action (O.J. 3291/72) was instituted by the defendant against the plaintiffs. This action was really by way of counterclaim to the claim in O.J. 3249/72, the defendant's claim being for alleged defects in the merchandise supplied by the plaintiffs under the 9 invoices I have mentioned, alleged short shipments, late delivery and also an alleged breach of some agency agreement.

11. On 29th December, Mr. Oswald Cheung applied for an order discharging the order for bail made on 20th December; alternatively for a review of the quantum of bail ordered. Mr. Jackson-Lipkin agreed that I had jurisdiction to review the quantum of bail, but his submission was that I had no jurisdiction under the rules to discharge the order for bail made under r.3(2).

12. According to the record of the proceedings, I gave no ruling on the point because the matter was further adjourned to 30th December; and, as counsel had not completed their submissions, I prefer to express no concluded view except to say that, apart from rr.5 and 6, it seems doubtful whether a judge has any jurisdiction to discharge an order made under r.3(2). On the face of it, r.4(2) gives the Court a measure of discretion; but whether the word "comply" means" comply "fully" or whether a partial compliance with the order would justify the Court in not sending the defendant to prison seems an open question. One the defendant is in prison, the rule does give the Court jurisdiction to release him at any time.

13. The parties came before me again on 30th December. By that date, the other 2 promissory notes falling due on 22nd and 29th December had been dishonoured; and the parties asked me to make a consent order. The order, as drawn up and filed, (so far as relevant), reads as follows:-

"Upon hearing counsel for the plaintiff company and counsel for the defendant and upon the plaintiff company by its counsel undertaking not to make any further application to this Court in respect of promissory notes drawn by Cordine International Corporation in favour of the plaintiff company and endorsed or guaranteed by the defendant and upon the defendant under taking by his counsel not in anywise to pray in aid this action to defeat to delay to prevent or to stay and to permit the plaintiff company to continue to sue him in an action in the Supreme Court of the State of New York, County of New York entitled 'Lincoln International Limited Manning Trading (H.K.) Co, and H. Cheong-Leen & Co. (H.K.) Ltd. plaintiffs against Seymour Feldstein Cordine International Corporation Enchanted Products Corporation and Toy Traders Co. defendants. And By Consent, it is hereby ordered that :-

The defendant paid in Court US$20,000, the warrant of arrest was discharged, the defendant's passport was returned to him; and he departed from Hong Kong. No further steps have been taken by the plaintiffs in O.J. 3249/72 or by the defendants in O.J. 3291/72.

14. In view of the consent order of 30th December, I was not called upon to give a ruling on any aspect of the 0.44A proceedings; but, from the submissions made during the hearing of Mr. Cheung's application for a review, it was clear to me that the decisions of this Court are somewhat in disarray; and, as the parties are again before me in connection with an application for a writ of ne exeat colonia arising out of the defendant's failure to honour the two promissory notes which fell due on 22nd and 29th December, I feel that I ought to record my views on this branch of the law, even although they may, in the circumstances, be obiter.

15. Rules 1-4 of 0.44A read as follows:-

If the defendant is able to persuade a surety or sureties, to sign an undertaking to pay any sum of money that may be adjudged against him, with costs, that is to say in the event of the defendant failing to appear at any time when called upon until execution of any judgment, the warrant of arrest shall be discharged by the Court and the defendant shall be released. But the bail must be "sufficient" - that is to say sufficient in the opinion of the Court, the Court having, under r.2, formed the view that the defendant's departure, or his disposing of his property, or removing it from the jurisdiction, as the case may be, is likely to result in the execution of any judgment being obstructed or delayed.

16. Alternatively, if the defendant deposits in Court money or other property sufficient to answer any sum of money that may be adjudged against him, with costs, the court may, in its discretion, accept that in lieu of bail in which case the warrant shall be discharged and the defendant released.

17. In the cases which come before this Court, defendants almost invariably choose the second of those two alternatives, because, even if a defendant is able to persuade his friends to stand bail, sureties have to be very carefully screened by the Court to make sure that they are men of substance; and this inevitably takes time. As ...(illegible) says in his Dictionary of English Law (Vol. I p.192) bail

"means security that a person concerned in civil proceedings will obey the requirements of the Court, and his consequent release or immunity from arrest quoad the proceeding in question. It is also used to mean the sureties who give the security.

18. It is desirable to say a word or two about the history of 0.44 rr. 1-4; and to understand those rules, it is necessary to look at the old English law relating to arrest on mesne process. Originally, of course, the most common method of beginning an action in the court of King's Bench was by way of capias ad respondendum i.e. a writ directing the sheriff to arrest the defendant. As Sir William Holdsworth (quoting Stephen's Pleading) says⁽¹⁾:-

"This process was possible in all the usual personal actions; and, when it was possible, it became the practice, in the course of the 18th century, to 'resort to it in the first instance, and to suspend the issuing of the original writ or even to neglect it altogether unless its omission should afterwards be objected by the defendant."

And at p.253 the learned auther says:-

"The process of capias ...... gave rise to a most complex body of law as to the bail below i.e. bail which the defendant must give to the sheriff who had made the arrest, for his appearance at the return of the writ; and the bail above i.e. bail which he must give in court, that he will ...(illegible) judgment. On the acceptance of bail above, the bail below was vacated."

19. "Bail above" was sometimes called "bail to the action". As Jowitt says (p.193). They were

"... persons whom the defendant procured to become his sureties for the ultimate payment of the debt and costs in the action, in the event of judgment passing against him, or as an alternative that he should surrender himself to prison. They were termed bail to the action because they were ...(illegible) for the defendant's abiding by the event of the action and obeying the judgment on the out therein, in contra-distinction to bail to the sheriff, who only undertook that the defendant should appear according to the exigency of the writ and provide bail to the action."

20. The writ of capias as a means of commencing an action at common law was altogether abolished, and a new writ called a capias on mesne process or bailable process, was introduced by the Judgments Act 1838⁽²⁾. The act recited that

"... the present power of arrest upon mesne process is unnecessarily extensive and severe, and ought to be relaxed .....;"

and ss.3, 4, 5 and 6 enacted that

21. Turning now to the history of the writ of Ne Exeat Regno. In Felton v. Callis⁽³⁾ Megarry J. gives a brief summary of the early history of this writ. He says:-

"The origin and history of the writ is examined in Beames' A Brief View of the Writ Ne Exeat Regno (1812); and there is a valuable account in Story's Commentaries on Equity Jurisprudence, 3rd English Ed (1920) pp.620-624, which professedly draws heavily on Beames. Holdsworth's History of English Law says very little about the writ: See Vol I 7th Ed. (1956)p.230; Vol.10 (1930) p.392. In its origin, the writ was a prerogative writ dating from the 13th century, used by the Crown. says Story, for 'great political objects and purposes of state, for the safety and benefit of the realm' Fitzherbert's New Natura Brevium 7th Ed. (1730) pp.192-3 says that because every man is bound to defend the King and his realm, the King may therefore at his pleasure command a man by the writ not to go beyond the seas or out of the realm without a licence.

By the time of Elizabeth I, however, the writ had begun to be used by the subject for civil purposes; and this was well established by the reign of James I. For claims at law, the litigant had available the power of arrest on mesne process, whereby the defendant could be coerced into giving bail. Equity lacked this amenity, and came to adopt (and adapt) the writ ne exeat regno as a means of achieving the same result. In 1734 Lord Talbot L.C. said in Ex Parte Brunker⁽⁴⁾ :

He went on to say that

Blackstone's Commentaries Vol.I 15th Ed. (1809) p.266n., says that the use and object of the writ in Chancery was

It thus appears that, by a process of adaptation familiar to all English lawyers, the prerogative writ was transformed into the equitable counterpart of arrest on mesne process at law, although, of course, unlike arrest, the writ was confined to cases in which the defendant was about to leave the jurisdiction, .......... In its developed form, the writ issued to the sheriff, commanding him to cause the debtor to come before him and give bail or security for a stated amount corresponding to the amount of the claim; and if the debtor refused to give this bail or security the sheriff was to commit the debtor 'to our next prison,' to be kept there until he gave the bail or security. The writ was issued on an ex parte application, but not surprisingly an undertaking in damages was usually required; and the writ had to be marked with the amount required to be provided as security. If the defendant alleged that the writ had been wrongfully issued he could at any time apply to discharge it; and he could also claim under the undertaking in damages. See generally Daniell's Chancery Forms 7th Ed. (1932) pp.756-760, Soton's Judgments and Orders, Vol.I 7th Ed. (1912), pp.504, 506; Sichel v. Raphael⁽⁵⁾ and Lees v. Patterson⁽⁶⁾. In this way, a process whereby the Crown, for reasons of state, prevented a subject from leaving the realm had become a process where by an equitable creditor could have a debtor arrested and made to give security if, and only if, he was about to leave the realm. The threat of leaving the realm had ceased to be the real objective which the writ sought to frustrate, and had instead become a condition precedent to enabling the plaintiff to coerce the defendant into giving security."

22. Daniell's Chancery Practice [4th Edition (1867)] Chapter 38 (pp.1536-1551) deals with the writ ne exeat regno. For our purposes, the 4th Edition of this work is valuable because, although the writ is discussed in Chap.26 of the 8th (1914) Edition, this latter chapter must be read with caution as a practice grew up of not issuing the writ in England except in cases which came within the provisions of s.6 of the Debtors Act 1869; and, as will be seen presently, this provision was never incorporated into the law of Hong Kong and it has no application whatsoever to this Colony.

23. Originally, the writ applied only to persons domiciled in England. But from the beginning of the 19th century there are many instances in the books of writ being granted in cases where the plaintiff was resident in England but the defendant was resident abroad. For example, in Flack v. Holm⁽⁷⁾, Lord Chancellor Eldon said:-

"I believe this writ was originally applied to persons domiciled in this country, ..............; but we know that for a long course of years it has been settled that if a man lives in our colonies, or in some other parts of our dominions, and in some parts too where there can be no arrest for debt yet if, being a debtor, he comes here and the party who is his creditor can pledge his oath that he is such debtor, that if it is a legal debt, he may be held to bail, and that if it is an equitable one, this writ of ne exeat regno may issue against him, although he comes here for a particular purpose and intends to return immediately ........... The circumstance of this defendant being a foreigner is not therefore, a ground upon which this writ can be discharged."

In Flack v. Holm⁽⁷⁾, the plaintiff ...(illegible) in England. The defendant was a native of Russia, generally resident and carrying on partnership in St. Petersburgh and in England for a temporary purpose only.

24. In Robertson v. Wilkie⁽⁸⁾ the defendants' usual place of residence was in Minorca. The defendant, Wilkie, was in England for, it was said, 10 days or a fortnight; and he was about to return to Minorca. The plaintiff's testator was a merchant in London. The plaintiff swore an affidavit to the effect that, following certain business dealings between the testator and the defendants, with whom he was in partnership, the defendants owed the testator some £2,161-15-10. The plaintiff obtained a writ of ne exeat against Wilkie marked in the sum of £2,000.

25. In Howden v. Rogers⁽⁹⁾, the defendant was normally resident in Ireland and was in England for a few days only. Again the writ issued.

26. However, the situation was different if the plaintiff, and a fortiori both parties, were resident out of the jurisdiction. In Hyde v. Whitfield⁽¹⁰⁾, the plaintiff, who was normally resident in Scotland, was in partnership with the defendants who were normally resident in Jamaica. In discharging the writ, Lord Eldon said:

"...... the writ cannot issue where the plaintiff resides out of the jurisdiction. There is no instance of it."

And in Flack v. Holm⁽⁷⁾, Lord Eldon said:

"In Talleyrand v. Boulanger Lord Loughborough ... was strongly inclined to hold that if 2 persons, living in France at the time the debt was contracted, afterwards come here, and the law of France does not in such cases allow of arrest, the law of England will not permit one party to arrest the other."

In De Carriere v. De Clalonne⁽¹¹⁾, a case decided in 1799 (39 years before the passing of the Judgments Act 1838, which made it necessary to have a judge's order for an arrest on mesne process), Lord Loughborough said:-

".... whatever is the case of proceedings at law, an application for the writ of ne exeat regno is to the discretionary power of this Court, acting beyond the limits of the common law, and applying a remedy certainly in its origin not distinctly applicable to private transactions between subject and subject. It is very delicate to interfere as against foreigners whose occasions or misfortunes have brought them here by an application of this writ to them."

27. However, Daniell (4th Edition p.1541) cites this case as authority for the proposition that

"..... if the question is between 2 foreigners, but the subject matter has arisen in this country, the writ will be granted."

28. Another feature of the writ of ne exeat regno was that it issued only where the claim upon the party going abroad was equitable; and it was refused in the case of a mere legal demand even where the defendant was not liable to arrest at law⁽¹²⁾.

29. In Daniell (4th Ed. - p.1536), the learned editors say:-

"The court will issue the writ wherever one party has a claim against another, which he can only enforce in a Court of Equity."

But at p.1536, they say:

30. Other features of the writ are mentioned by the learned editors of Daniell (4th Ed.) at p.1539, where they say :

"In order to authorise the issue of a ne exeat regno, the demand must not only be equitable, but it must be a pecuniary demand ...... and the demand must not only be pecuniary, but it must be actually due. The writ will not be issued in respect of a claim which is merely contingent .... if it is payable in futuro, the writ cannot be granted."

31. That was the state of the law in England when The Debtors Act 1869⁽¹³⁾ was enacted. Section 6 of that Act provided that

"after the commencement of this Act a person shall not be arrested upon mesne process in any action."

However, the section continued thus:

32. The important additional factor introduced by the 1869 Act was that the judge had to be satisfied that the defendant's absence from England would "materially prejudice the plaintiff in the prosecution of his action." Until 1969, the whole object of arrest on mesne process was not only to keep the defendant within the jurisdiction for all purposes connected with the prosecution of the action, but (as in the case of the prerogative writ of ne exeat regno) to coerce the defendant into giving security sufficient to satisfy the judgment, in the event of judgment being given against him. But, it is clear from s.6 of the 1969 Act that this was now restricted to the case of an action for a penalty. In all other cases, the material factor was not whether the plaintiff's chances of obtaining payment would be prejudiced but whether his chances of obtaining judgment would be prejudiced e.g. through his inability to secure the defendant's evidence viva voce, or on discovery, or by way of interrogatories. I apprehend that, if a defendant in England today were to agree to admit the material facts alleged by the plaintiff, no order under s.6 would be made - except, as I say, in actions for a penalty.

33. In England, until 1966, 0.69 regulated the procedure in regard to orders made under s.6 of the Act; and r.3 of the Order regulated the form of security to be given. For some reason, this Order was omitted from the R.S.C. in 1967. In this connection, a note by the editors of The Annual Practice for 1966 is of interest. They say (p.1857):-

"It is believed that no order has been made under this section for many years, and it is difficult to imagine circumstances in which an order would in the future be made, except perhaps in an action for a penalty; but the section remains in force and by s.31(2) of the Crown Proceedings Act 1947, has been extended, with any necessary modifications, to civil proceedings in the High Court by the Crown."

34. At this stage, I shall recall briefly the history of the rules contained in 0.44A which, one might say, is the statutory equivalent in Hong Kong of s.6 of the 1869 Act although the Hong Kong provisions differ radically from those in force in England. It appears that the basis of what is now rr.1, 2, 3, and 4(2) of 0.44A was ss.74-78 of the Indian Code of Civil Procedure 1859. As that code is not now readily available in Hong Kong. it may be desirable that I should reproduce ss.74-78 here. They read as follows:-

The substance of these provisions was first introduced into our law by The Hong Kong Code of Civil Procedure [Ord. 13 of 1873] s.16⁽¹⁴⁾. But, under the 1873 provisions, the court, before issuing the warrant, did not have to be satisfied that the defendant's intention was "to avoid or delay the plaintiff or to obstruct or delay the execution of any decree that may be passed against him." The test was objective. If by reason of the defendant's departure from the jurisdiction or his disposal of, or removal from the jurisdiction of, his assets, the execution of any decree was likely to be obstructed or delayed, the Court was empowered to issue the warrant. The 1873 provisions read in part:-

35. Another feature of the 1859 Indian Code and of the Hong Kong provisions is that the word "abscond" and its derivatives, do not appear. In s.477 of the Indian Code of Civil Procedure Act X of 1877 (which replaced the 1859 Code), the words:

were first introduced. They were repeated in 0.38 r.1 of the Rules made under the Indian Code of Civil Procedure 1908 [Act V of 1908].

36. For some reason which is not clear to me, the words "arrest of absconding debtor", were inserted by the draftsman as a heading to s.16 of Ordinance no.13 of 1873; and they also appear as a heading to rr.1-6 of 0.44A - but, as it seems to me, without any justification whatsoever. The test under the Hong Kong rules is an objective one. The plaintiff does not have to prove that the defendant's intent is to obstruct or delay the execution of any decree that may be made against him.

37. As a matter of history, the 1873 provisions were re-enacted in substance in the Code of Civil Procedure [Ord. 3 of 1901] ss.566-571⁽¹⁵⁾. This Code was repealed in 1950; and in the Griffin (1950) Edition of our laws, the rules relating to arrest before judgment were contained in 0.26 rr.1-6; and the rules, which are now contained in 0.44A rr.1-6 appear to have remained in substantially the same from since they were first introduced in 1873, modelled, as they were, on the Indian Code of Civil Procedure 1859.

38. During Mr. Oswald Cheung's application for an order discharging the order made under r.3(2) of 0.44A on 20th December, the views expressed in Sun Ming Shan v. Moran⁽¹⁶⁾ were fully discussed. This case appears in our Law Reports as a decision of "The Full Court". But to get this decision into proper perspective, it is necessary to recall the conditions which prevailed in Hong Kong in 1910. There were, of course, only 2 judges in those days viz. a Chief Justice and the Puisne Judge. There was no Full Court in the modern sense of that term. The first Full Court Ordinance was enacted as no.27 of 1912; and this provided for a Full Court of 2 or 3 judges, and, if a court of 3 judges sat, it was necessary to bring in a judge from the consular court in Shanghai. For example, in Tomes v. Shewan⁽¹⁷⁾, a case decided in March 1914, the Full Court consisted of Havilland de Sausmarez, President, sitting with Rees-Davies C.J. and Gompertz J. It was not until Ordinance no.8 of 1933 was enacted that provision was made for the appointment, on a temporary basis, of a barrister of 7 years' standing as the third member of the Full Court. But in 1910, the only provisions relating to appeals from the decisions of a single judge were ss.18 and 19 of Ordinance 12 of 1873. "The Full Court" was defined in that Ordinance as "the Chief Justice and the Puisne Judge sitting together."

39. What happened in the Moran⁽¹⁶⁾ case was this: A plaintiff made an application to the Acting Puisne Judge under s.566 of the Civil Procedure Code [the then equivalent of r.1 of 0.44A]. An order for security in the sum of $5,300 was made. The defendant spent the night in prison. Next day, upon the defendant's application, the Acting Puisne Judge reviewed his decision and reduced the amount of security to $1,500. The plaintiff appealed from the judge's decision reducing the amount of security, contending that the order, having once been made, the judge had no power of review, except by summons. The decision of the Full Court [consisting, presumably, of the Acting Puisne Judge himself sitting together with the then Chief Justice, Sir Francis Piggott] is contained in the last sentence of the only judgment delivered viz. that of the Chief Justice. It reads:

"The main point we wish to establish is that there is always a jurisdiction to review an order made under these sections, on substantial grounds."

40. As quantum of bail was the only matter in issue, presumably "jurisdiction to review" means jurisdiction to review the quantum. At any rate, that was all that the case decided; I am bound by the decision. But I do not consider that I am bound by anything else in the judgment of the Chief Justice, almost all of which, was obiter and, in my respectful submission, per incuriam anyway. None of the decisions discussed in this case appear to have been cited to the Court; and, in my view, it is much to be regretted that the views expressed in the Moran⁽¹⁶⁾ case have never come up for consideration before a modern Full Court.

41. The facts in the Moran⁽¹⁶⁾ case were exceptional. They are summarised at p.219 in these words:-

"The plaintiff resided in Shanghai, and had come to the Colony temporarily for the purpose of suing the defendant. The defendant also resident in Shanghai and was with his child on his way to England; he intended to reside in the Colony for a few days, awaiting the arrival of his wife by another steamer from Shanghai. The plaintiff issued and served the writ in the action and immediately took out a summons under s.566 of the Code of Civil Procedure, for an order for security, or in default that the defendant be arrested as an absconding defendant, the ground alleged being that he was about to leave the jurisdiction of the Court. The cause of action arose in Shanghai, the amount claimed being $5,174.63."

The basic facts, therefore, were that both parties resided in Shanghai; the cause of action arose in Shanghai; and, so far as the report indicates, the case had no connection whatsoever with Hong Kong, or its courts.

42. Section 567 of the Code [as indeed r.2 of 0.44A] says ".... it shall be lawful for the Court to issue a warrant ......" I do not think it is necessary to get bogged down in a discussion as to the precise meaning of the expression "it shall be lawful." Prima facie the words are permissive, although, of course, if they are used to effectuate a legal right, they are usually held to be mandatory⁽¹⁸⁾. For our present purpose, all I need say is this; If the Acting Puisne Judge had considered for a moment the history of English law relating to arrest before judgment and to such decisions as Hyde v. Whitfield⁽¹⁰⁾, Flack v. Holm⁽⁷⁾ and Carriere v. De Calonne⁽¹¹⁾ and to the history of our own statute law [including the fact that the Judgment Act 1838 was incorporated into our law by virtue of Ordinance 2 of 1846, and remained the law, at any rate until the enactment of s.16 of Ordinance 13 of 1873, if not until the enactment of the Application of English Law Ordinance Cap.88] he might never have issued a warrant for the arrest of the defendant in the first place, in which case the matter would not have come before the Full Court.

43. Clearly, the then Chief Justice held very strong views as to the propriety of legislation which provided for the arrest, in certain circumstance, of debtors before judgment; and instead of confining himself to the simple question before him as to whether a single judge had power to review an order made by him under what was then s.568 of the Code of Civil Procedure [no.3 of 1901], he embarked on a most critical analysis of the legislation, and confessed that since his arrival in the Colony he had tried to put the law, as he said, "in a more civilised shape" and had endeavoured "to shear off some of its excrescences and to whittle it down to more reasonable limits consistently with legitimate construction." (p.219). At p.218 he described the relevant provisions in the Code as:

"a barbarous practice, a relic of the dim ages of jurisprudence, only preserved in the Colony on account of an unfortunate habit among Chinese defendants of taking the night boat to Canton when litigation is pending against them. It is contrary to elementary jurisprudence to allow execution to be levied against a defendant before the case is heard."

It appears to have escaped his notice that s.6 of the Debtors Act 1869 was in full force in England in 1905 - as it is today; and that between 1838 and 1869 (46 years before 1905) arrest before judgment in actions at law was regulated by the Judgments Act 1838, and, as regards equitable debts, writs of ne exeat regno issued regularly.

44. The learned Chief Justice went on to say two things. The first of these he expressed in these words (p.221):-

".... I will never issue the warrant on the first application unless it is absolutely essential ...... I hold that there is a discretion in the court to require the defendant in the ordinary way, by summons, to explain his suggested departure. He may negative it at once to the satisfaction of the Court, and therefore no warrant being necessary, none will have been issued. If the case is sufficiently strong, and here the night boat to Canton appears on the scene, the warrant may be inevitable and must be issued; but in the many cases I have had to deal with the percentage is very small in which I have had to resort to this extreme remedy. There is an intermediate case, where the time is sufficient to allow it, in which I allow the warrant to issue, remaining in the bailiff's pocket, only to be used in case the defendant will not come."

45. The section of the code makes no mention of a summons in the first instance. To interpret it in this fashion or invent a procedure to give effect to the intention of the legislature is to do violence to plain and unambiguous language which calls for the issue of a warrant in the first instance. If these rules apply to every class of debtor (as I think they do) including those normally resident overseas, and irrespective of the duration of the their stay in Hong Kong, in a large number of cases, a summons would prove totally ineffective as a means of bringing the debtor before the Court. If the procedure outlined in the Moran⁽¹⁶⁾ cases simply means that, armed with both a summons and a warrant, the bailiff does not need, in the first instance, to go through the embarrassing procedure of saying to the debtor: "I arrest you," well and good. But the point is: The rule requires that, irrespective of the debtor's wishes in the matter, he be brought before a judge; and that means at once. So, it is as broad as it is long.

46. The other view expressed by the Chief Justice, also obiter, appears at p.225. Mr. Eldon Potter had submitted that the scheme of the sections "contemplates a permanent, or quasi-permanent, residence" in the Colony. This submission found favour with the Chief Justice who said:-

"I am ... strongly of the opinion that the section" [i.e. ss.566-568 of the Code] "only applies to persons who at the time of action brought are more or less permanently residing in the Colony. I cannot give judgment on this point, because there was no appeal from the order."

Some 5 years later, Sir Francis Piggott had another opportunity of expressing these same views, which were again obiter as regards the matter then before him. In Lai Chi Chiu v. Tang Wong Shi⁽¹⁹⁾ the circumstances were that plaintiff (who was defendant in action no.38 of 1908) had been arrested under s.566 of the Code on an affidavit filed by the defendant (who was plaintiff in action no.38). Lai brought an action against Tang for malicious prosecution. The jury answered certain questions; and on the basis of those answers counsel for the plaintiff (Lai) moved for judgment. A question arose as to whether, in the words of Gompertz J. (the trial judge), "trespass lies when an order of a judicial officer made in the exercise of his judicial discretion has been set aside for irregularity." Gompertz J. held that it did not lie. He therefore dismissed the motion and entered judgment for the defendant.

47. The plaintiff appealed; and the matter came before the Chief Justice and, of course, the trial judge himself. As I have said, the Chief Justice took the opportunity of repeating, entirely obiter, the substance of what he had said, obiter, in the Moran⁽¹⁶⁾ case. His observations take the matter no further.

48. In Gayda v. Hyde⁽²⁰⁾, an Acting Puisne Judge (McFee J.) appears to have agreed with the obiter dicta of Sir Francis Piggott in the Moran⁽¹⁶⁾ case; and in Continental Corporation v. Vincenzo Fedels⁽²¹⁾, Huggins J. also appears to have agreed to some extent with those observations, except that he endeavoured to put a gloss on the expression "more or less permanently residing" and "permanent or quasi-permanent residence."

49. In the present case Mr. Oswald Cheung submitted that by "permanent" Sir Francis Piggott must have had in mind the great bulk of the Chinese population whose real home is Hong Kong and by "more or less permanent", the learned chief Justice must have had in mind the European expatriate population who lived and worked here but who, at the end of their careers, return to the land of their birth.

50. In the Continental⁽²¹⁾ case, Huggins J. saw the difficulties which the courts would find themselves in if they adopted the obiter dicta in the Moran⁽¹⁶⁾ and Hyde⁽²⁰⁾ cases. He said (p.936) :

"Where does one draw the line even if one adopts the reasoning in the two cases? When does residence become 'permanent' or 'quasi-permanent'?"

51. Indeed, one may well ask? In may view, there is no justification whatsoever for saying that the word "defendant" in 0.44A means a person who is "more or less permanently residing" in the Colony. If the legislature had intended the section to apply to persons who had become "permanently resident", or "quasi-permanently resident", in Hong Kong, they would have said so. Hong Kong lives by its export trade. Hundreds, if not thousands, of manufacturers here deal, and deal only, with purchasers who reside in other parts of the would - men who visit Hong Kong every day for the purpose of inspecting the products they intend to purchase and in order to sign contracts for the purpose of goods manufactured by Hong Kong companies. With improved methods of travel, the world is "shrinking". The jumbo jet to San Francisco is a much more effective way of evading one's creditors than "the night boat to Canton". Time and again during the last 27 years there have been suggestions from that over-sensitive minority in our midst [to whom such catch phrases as "the liberty of the subject" mean so much] that the provisions of 0.44A should be repealed. such suggestions have found little favour with the business community in Hong Kong who are all too familiar with overseas debtors who refuse to pay their debts as well as the "fly-by-night" type of business man who has no real roots in Hong Kong.

52. Writing in 1925 Sir William Holdsworth said⁽²²⁾:-

"...... though the earliest systems of personal execution rest upon very primitive ideas, the law has at no time been able to dispense wholly with the power of restraining the debtor's person in the last resort. At all times there will be persons whose morality is so much below the average commercial morality of the age, that they do not scruple to take advantage of the credit which, in reliance upon the existence of that commercial morality, is given to them. If it is advantageous to commerce that the standard of commercial morality should be high, and that credit should be given, it is necessary to bring home to such persons, in the only way in which they will feel it, the consequences of their conduct. It is true that the imprisonment of a debtor. who is unable or unwilling to pay his debt, will not necessarily give the creditor his money; but it will tend to stop such abuses of confidence. At the same time it is a means of coercion which requires to be regulated sparingly; and in most systems of law it is recognised that it should be used sparingly and in the last resort."

53. What Sir William Holdsworth says in regard to personal execution applies equally (especially in a territory like Hong Kong) to arrest before judgment. What has to be remembered is firstly that the rules in 0.44A are intended to be coercive, not punitive; and secondly, that we have never incorporated the provisions of s.6 of the Debtors Act 1869 into our law. Subject to the differences I have referred to, the rules in 0.44A have remained in substantially the same from as when they were, on the Indian Code of Civil Procedure 1859.

54. With the greatest respect, Sir Francis Piggott's approach to ss.566 and 567 of the Code of Civil Procedure violated well recognised rules of statutory interpretation. There is nothing vague about those sections or about rr.1 and 2 of 0.44A. They do not lead to absurdity. The rules are perfectly capable of being operated sensibly. In my view, it is the duty of being operated sensibly. In my view, it is the duty of every judge no matter how eminent, to take the law as he finds it (no matter how much he may personally disagree with it). His duty is to interpret the law faithfully in accordance with well-known principles of statutory interpretation.

55. I should mention one other matter. Throughout the history of this branch of the law, the statutes and the cases indicate clearly that if an order for bail or security is made, it should be "sufficient" - sufficient not only to cover any sum of money that may be adjudged against the defendant, but sufficient to cover any order as to costs which may be made against him.

56. Returning now to the facts of this case. The defendant returned to Hong Kong on 11th May 1973; and on 16th May the plaintiffs instituted another action (O.J. 1323/73) in which they claimed from the defendant, as guarantor and endorser of the two dishonoured promissory notes which fell due in New York on 22nd and 29th December 1972, the sum of US$28,773.86. At the same time, the plaintiffs instituted a further action (O.J. 1324/73) by which they sought an order for the issue of a writ of ne exeat regno, or ne exeat colonia, to restrain the defendant from departing out of the jurisdiction of the Court. On 16th May, counsel for the plaintiffs applied ex parte for the issue of the writ. In a supporting affidavit, the plaintiffs' manager (Mr. Prior) said that the defendant had been Doing business with a number of companies in Hong Kong on behalf of the American corporation (Toy Parts); that the defendant had no assets in Hong Kong with which to satisfy any judgment which might be obtained in O.J. 1323/73; but that he (Prior) verily believed that the defendant had sufficient assets (presumably elsewhere) to meet his guarantee on the 2 promissory notes; that, as regards O.J. 3249/72, "under threat of imprisonment", the defendant had paid US$20,000 into court "to secure his release"; and that he (Prior) verily believed that.

".... once (the defendant) learns that the plaintiff has commenced proceedings in Hong Kong in respect of the said 2 promissory notes he will not return to the Colony and the plaintiffs' opportunity to proceed herein to recover the amount owing would be gravely prejudiced if not thwarted."

On this ex parte application, I ordered that the writ do issue. The writ was in these terms:-

"To The Chief Bailiff of Hong Kong whereas it is represented now to us in our Supreme Court of Judicature of Hong Kong on the part of Lincoln International Ltd. plaintiff against Seymour Feldstein defendant, amongst other things that he, the said defendant, is greatly indebted to the said plaintiff and designs quickly to go into parts beyond the seas, as by oath made in that behalf appears, which tends to the great prejudice and damage of the said plaintiff; thereof in order to prevent this injustice, we do hereby command that you that you do, without delay, cause the said Seymour Feldstein personally to go before the Hon. Mr. Justice Blair-Kerr, one of our Justices of our Supreme Court of Judicature of Hong Kong and give sufficient bail or security in the sum of HK$148,185.38 that he the said Seymour Feldstein will not go or attempt to go into parts beyond the seas without leave of our court. And in case the said Seymour Feldstein shall refuse to give such bail or security then you are to commit him the said Seymour Feldstein to our next prison; there to be kept in safe custody until he shall do it of his own accord. And when you shall have taken such security, you are forthwith to make and return a certificate thereof to our Supreme Court of Judicature of Hong Kong distinctly and plainly under your seal together with this writ.

57. The defendant (with his solicitor) and the solicitor for the plaintiffs appeared before me on 17th May. I was informed that counsel on behalf of the defendant would be making an application that the writ be discharged. Pending the disposal of that application, the parties were agreed that the defendant could be released provided he put up nominal bail of HK$500 and surrendered his passport; and this was done. Wednesday 23rd May was fixed for the hearing of the defendant's application.

58. By 23rd May, although he had sworn an affidavit, the defendant had not filed any notice of motion. I gathered that counsel for the defendant expected the matter to be dealt with on the affidavit in Chambers. However, in order to save time counsel for the plaintiffs agreed that, upon the defendant undertaking to file a notice of motion (which he eventually did) the matter could proceed, in chambers; but he asked the court to record that this procedure should not be taken as creating any sort of precedent. I entirely agree. Not only should there be a notice of motion; but frequently there are disputed questions of fact to be resolved in a situation such as this; and, although there is nothing improper in the parties filing affidavits, it frequently happens that it is necessary also to have oral evidence, including cross-examination of deponents in cases where there are conflicting allegations of fact in the affidavits filed. No court can resolve questions of fact on affidavit.

59. Mr. Cheung pointed out that under 0.44A r.2 the Court was empowered to issue a warrant of arrest "in any action" (other than one for the recovery of immoveable property); that this included all claims of an equitable nature as well as claims in law; and that consequently there was no necessity, in Hong Kong, for the prerogative writ ne exeat regno. He also pointed out that there is no reference to the writ in our statute law nor is there any reported case of such a writ ever having been issued by this Court. But, as I understood Mr. Cheung, he did not go so far as to submit that this Court had no jurisdiction to issue the writ; and, clearly, this Court has jurisdiction, in appropriate cases, to issue such a writ. Sections 7 and 8 of the Supreme Court Ordinance deal with the jurisdiction of this Court. They read:

60. Sections 13 and 14 of the Supreme Court Ordinance (no.15 of 1844) and ss.14 and 15 of the Supreme Court Ordinance (no.6 of 1845) were in substantially the same terms as ss.7 and 8 of Cap.4. After the enactment of the Supreme Court of Judicature Act 1873, the Hong Kong provisions were amended by the addition of the word "had". I do not know what purpose the word "have" serves to day. Clearly, ss.7 and 8 look to the period of English history prior to 5th August 1873. Be that as it may, my point is that no rule of court, no matter how comprehensively framed, could possibly oust the jurisdiction of this Court to issue a prerogative writ. Only a local Ordinance or an Order-in-Council could do that. But, following the practice of the New Zealand Courts [vide Parsons v. Burk⁽²³⁾] I prefer to call the writ "ne exeat colonia" for the simple reason that Hong Kong is not "a Kingdom".

61. What Mr. Cheung described as his "basic submission" was founded on his interpretation of ss.6 and 9(a) of the Supreme Court Ordinance Cap.4, as read with the views expressed by Megarry J. in Felton v. Callis⁽³⁾. Section 6 of Cap.4 reads:-

Mr. Cheung's submission, as I understood it, was this:

Section 9(a) of Cap.4 reads:-

"9. In every cause or matter commenced in the court, law and equity shall be administered by the court according to the rules following -

Mr. Cheung's submission was this:-

62. I agree with the latter part of that submission; but the question is : Assuming Megarry J. is correct in holding that an order for the issue of a writ of ne exeat should not be made by an English judge unless he is satisfied that the 4 conditions laid down in s.6 of the 1869 Act are satisfied, is Mr. Cheung correct in his submission that a judge of this Court should not make an order for the issue of a writ of ne exeat colonia unless the 4 conditions laid down in s.6 of the 1869 Act are satisfied?

63. In dealing with this submission, Mr. Jackson-Lipkin took me back to Ordinance 15 of 1844⁽²⁴⁾, s.3 of which enacted that

"the law of England shall be in full ferce in ...... Hong Kong except when the same shall be inapplicable to the local circumstances ...... Provided ..... that in all matters relating to the practice and proceedings of the said Supreme Court ..... the practice of the English courts shall be in force until otherwise ordered by any rule of the said court."

64. Ordinance 15 of 1844 was repealed by Ordinance 6 of 1845⁽²⁵⁾; but the substance of s.3 of the 1844 Ordinance was re-enacted in s.4 of the 1845 Ordinance.

65. The 1845 Ordinance was amended by Ordinance 2 of 1846⁽²⁶⁾, s.3 of which enacted that

"henceforth such of the laws of England only and such of the practice of the English courts ...... as existed when the said Colony obtained a local legislature, that is to say on 5th April 1843, shall be in force therein."

66. As Mr. Jackson-Lipkin said, as from the date of the enactment of Ordinance 2 of 1846, it was not the law of England for the time being which applied to the Colony, but only such of the laws of England as existed at 5th April 1843. And Counsel's submission was that unles, some subsequent Hong Kong legislation expressly brought in either an English Act or the effect of an English Act, neither such an Act, or its effect, could apply in Hong Kong by implication.

67. The earlier legislation was consolidated by s.7 of The Supreme Court Ordinance 1873⁽²⁷⁾, which section reads:-

"Such of the laws of England as existed when the Colony obtained a local legislature, that is to say on 5th April 1843, shall be in force within the Colony ....."

68. There is no doubt that in 1873 the Judgments Act 1838 was in force in the Colony, and had been in force since 1846 by virtue of s.3 of Ordinance 2 of 1846; and if the reasoning of Megarry J. in Felton v. Callis ⁽³⁾ in correct, the powers of this Court in regard to the issue of writs of ne exeat colonia would have been circumscribed by the 1838 Act - being an English statute applicable to, and in force in, the Colony by virtue of local legislation. That being so as Mr. Jackson-Lipkin said, it would be surprising if it could be successfully argued that although there has been no express provision for the incorporation of a later statute into our law, nevertheless, the effect of this statute is, somehow impliedly incorporated into our law.

69. The old Courts of Chancery, Cueen's Bench, Common Pleas, etc. were united and consolidated into one Supreme Court by the Supreme Court of Judicature Act 1873. The new Court, was of course, organised in Divisions; and, clearly, provision had to be made for all Divisions of the court to administer law and equity otherwise these Divisions would have continued to exercise their ancient jurisdictions separately Therefore it was necessary that Part 2 of the Act [ss.16-25] should be enacted.

70. Section 24(1) read:

71. For some reason or other (which is not clear to me), it was considered necessary to introduce this provision into our law in 1901 [28 years after it was enacted in England] by s.3 of the Law Amendment Ordinance of that year. Why this was necessary passes my comprehension. Hong Kong had managed very well without it for 28 years. Of course, the English section had to be adapted to make any kind of sense. We have never had a separate "Court of Equity in Hong Kong. So the draftsman had to say "which formerly could only have been given by the Court in its equitable jurisdiction." But we have never had a separate "equitable jurisdiction" From the day the Supreme Court was constituted in 1844, it has been one Supreme Court which has administered law and equity concurrently, in accordance with the jurisdiction conferred upon it by ss.13 and 14 of Ordinance 15 of 1844.

72. The concluding words of the 1901 provision were

"...... properly instituted before the commencement of the Hong Kong Code of Civil Procedure."

It is far from clear to which Code of Civil Procedure the draftsman was referring. A Code of Civil Procedure [Ordinance 13 of 1873] was enacted on 30th September 1873. But a new Code of Civil Procedure [Ordinance 3 of 1901] was also enacted on the same day as the Law Amendment Ordinance 1901 viz. 1st July 1901:

73. Be that as it may, the concluding words of what is now s.9(a) of Cap.4 were changed apparently because 13th October 1873 was the date the Supreme Court Ordinance [no.12 of 1873] came into force [vide s.33 of the Ordinance as published at p.469 of the Hong Kong Government Gazette of 4th October 1873 and Proclamation no.41 published in the Government Gazette of 11th October 1873.] The 13th October 1873 was not the date on which The supreme Court of Judicature Act 1873 came into force. That was 5th August 1873. In fact 13th October 1873 had nothing whatever to do with the law of England.

74. Prior to 13th October 1873, this Court did not grant relief "in its equitable jurisdiction". As I have said, being one court as from 1844 (28 years before the constitution of the Supreme Court of Judicature in England in 1873) this Court had administered law and equity concurrently; and , so far as I am aware, nothing happened in Hong Kong on 13th October 1873, except that the new Supreme Court Ordinance came into force.

75. Furthermore, I am unable to agree with Mr. Cheung's submissions in regard to the meaning of the word "practice" in s.6 of the Supreme Court Ordinance. A useful guide as to the meaning of this word was given by Lush L.J. in Poyser v. Minors⁽²⁸⁾. He said (p.333).

"Practice in its larger sense .... like 'procedure' which is used in the Judicature Acts, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the Court is to administer the machinery as distinguished from its product."

76. In my view, when deciding whether to issue a writ of ne exeat colonia in Hong Kong, a judge of this Court should not be influenced in any way by s.6 of the Debtors Act 1869, which has no application whatsoever to this Colony; and the judgment in Felton v. Callis⁽³⁾ is of very limited value to a Hong Kong court.

77. Mr. Cheung was on much stronger ground on the second leg of his submission, which was:

78. Before Mr. Jackson-Lipkin had an opportunity to answer this submission, things began to move in O.J.1323/73. The defendant did not enter an appearance in that action; and on 28th May the plaintiffs took out judgment for HK$148,185.38. They then took out a writ of execution; and there were a series of adjournments of O.J.1324/73. Eventually, the defendant paid the plaintiffs' solicitors the amount of the judgment debt in O.J.1323/73; and on 7th June; the parties came before me in O.J.1324/73 and asked me to make a consent order in these terms:

I se ordered.

79. Therefore, as I have said this judgment decides nothing; but as judges in pre ious cases from the Moran⁽¹⁶⁾ case onwards do not appear to have had such assistance from distinguished counsel as I have had in this case, I make no apology for recording counsel's submissions and stating my views, so far as it is appropriate to do so.

80. On Mr. Cheung's second point I understand no concluded view for the simple reason that I did not, in the circumstances, have the opportunity of hearing Mr. Jackson-Lipkin; but, as at present advised, I must say that Mr. Cheung's point appears to be unanswerable.

81. I should also add that, as I understand the authorities, the Court's power to grant the writ of ne exeat is discretionary; and, even if the debt had been an equitable one (which, in my view, it is not) the plaintiffs in this case might have found themselves in difficulties. after all 0.44A is not restricted to claims at law. It covers all debts whether legal or equitable; and, although the writ ne exeat colonia is also available, so far as equitable debts is concerned (and has certain advantages, from the creditor's point of view, over 0.44A) on 30th December 1972 the intention of the parties as revealed in the consent order, was that they should settle their differences in the courts of the United States and not invoke further the jurisdiction of this Court - certainly that appear to have been the spirit of the order. But, again, as Mr. Jackson-Lickin did not have an opportunity of addressing me on the question of discretion and as to how it should be exercised in this case, I say no more.

Representation:

M.H. Jackson-Lipkin (Gordon Hampton & Winter) for plaintiffs.

O.V. Cheung, ...(illegible) .C and . Mr. Li ( Fairbairn & Co.) for defendant.

(1) History of English Law Vol. 8 p.250.

(2) 1 & 2 Vict. C.110

(3) [1969] 1 Q.B. at pp.205/207

(4) [1734] 3 P. Wms. 311; 24 E.R. 1079

(5) (1861) 4 L.T. 114

(6) (1878) 7 Ch. D. 866

(7) [1820] 1 Jac. & W. p.405 at 415 37 E.R. 430 at pp.433/4

(8) [1753] 2 Dickens 786; 21 E.R. p 476

(9) [1812] 1 V. & B. 129; 35 E.R. 51

(10) [1815] 19 Ves. 342; 34 E.R. 544

(11) [1799] 4 Ves. at p.591; 31 E.R. at p.303

(12) Per Lord Hardwicke in Pearce v. Lisle Amb 75; Brocker v. Hamilton 1 Dick 154; Greames v. Stritho 2 Dick 469; Ex parte Duncom be 2 Dick 503; Crossley v. Marriot 2 Dick 609; Ex parte Brunker 3 P. Wms. 313; Gardner 15 Ves. 444

(13) 32 & 33 Vict. C.62

(14) 2 Leach p.1201 and pp.1207/1209

(15) 3 Dyer Ball at p.1253

(16) [1910] 5 H.K.L.R. p.216

(17) [1914] 9 H.K.L.R. p.67

(7) [1820] 1 Jac. & W. p.417

(18) Julius v. The Bishop of Oxford [1880] 5 A.C. 214

(19) [1912] 7 H.K.L.R. p.46

(20) [1960] H.K.L.R. p.223

(21) [1963] H.K.L.R. p.930

(22) History of English Law Vol. VIII p.230/1

(3) [1969] 1 Q.B. p.200

(23) [1971] N.Z.L.R. p.244

(24) 1 Leach p.53

(25) 1 Leach p.121

(26) 1 Leach pp.173/4

(27) H.K. Government Gazette dated 4th October 1873 p.466

(28) [1881] 7 Q.B.D. p.329