Chai Oi Kwan v. Kader Industrial Co Ltd

HCA001975/1967

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1975 OF 1967

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Coram: Huggins, J.

Date of Judgment: 2 April 1969

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JUDGMENT

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Huggins, J:

This is an application by a judgment debtor whose person has been attached in execution for release from prison. It is the third such application that he has made since his attachment. On 15th February 1969 the first application was dismissed by Mr. Justice Rigby on the grounds that the judgment debtor's inability to satisfy the judgment was attributable to unjustifiable extravagance in living and that the judgment debtor had committed an act of bad faith. On 12th March the second application came before Mr. Justice Scholes. I am informed by counsel for the judgment creditor that on that occasion he took the point that the matter was res judicata but he says that no ruling was given upon the point. Instead the learned judge went into the case again on the merits and came to the same conclusion as had been reached by Mr. Justice Rigby. Accordingly the second application was dismissed.

2. Before me counsel has again submitted that the matter is res judicata and I am satisfied that the point is well taken. A similar case came before me in another court in 1964 and I see no reason to depart from the view which I then expressed: see Yam Sau-ying v. Young Ying-cheung⁽¹⁾. The only distinction in the present case is that the judgment debtor seeks to adduce before me evidence which was not before the other judges. His allegation is that the judges relied on evidence which was not true, including a letter written by himself: he says that this letter was obtained from him by his employer as a result of an inducement and he wishes to call two witnesses who, he says, were present at the time the letter was written. Whether or not the evidence of these witnesses could properly be put before another court I am satisfied that it cannot properly be put before me. I am not sitting here on appeal from the decisions of the other learned judges and in my view it is not open to the judgment debtor to litigate before me the same matter that has already been twice considered and adjudicated upon. Nor would it be appropriate for me to indicate whether or not the judgment debtor could successfully apply to an appellate court for the admission of this evidence but I wish to make it abundantly clear that I am not encouraging the judgment debtor to appeal.

3. In my view the application is misconceived and must be dismissed.

2nd April, 1969.

Representation:

Mr. Ming Huang (P.C. Woo & Co.) for the Judgment Creditor.

Applicant in person.

(1) 1964 H.K.D.C.L.R. 32