Columbia Export Packers (HK) Ltd v. Alexander Buchanan Mc Culloch
Read the full judgment text of DCCJ 8060/1975 on BabelCite. This District Court judgment.
1. On 1st December 1975 the Plaintiff commenced proceedings in this court to recover the sum of $20,000 from Defendant in respect of the cost of shipping some goods. By consent an order for judgment in the sum of $20,000 was made in favour of the Plaintiff on 15th December 1975 and under the terms of that order the Defendant was required to pay the judgment debt by ten monthly instalments, the first of which fell due on 10th March 1976. The usual default clause was embodied in the order.
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DCCJ008060/1975 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 8060 OF 1975 -----------------
----------------- Coram: Judge Rhind Date of Judgment: ----------------- RULING ----------------- 1. On 1st December 1975 the Plaintiff commenced proceedings in this court to recover the sum of $20,000 from Defendant in respect of the cost of shipping some goods. By consent an order for judgment in the sum of $20,000 was made in favour of the Plaintiff on 15th December 1975 and under the terms of that order the Defendant was required to pay the judgment debt by ten monthly instalments, the first of which fell due on 10th March 1976. The usual default clause was embodied in the order. 2. No instalment has ever been paid and the full amount of the judgment debt is still outstanding. 3. To enforce the judgment debt, the Plaintiff took out a writ of fi fa on 16th June 1976, but it has remained unexecuted as the Defendant has no assets in Hong Kong. Moreover, the bailiff has been unable to arrest and imprison the Defendant for debt in accordance with section 67 of the District Court Ordinance and Order 49B of the Supreme Court Rules because the Defendant has left Hong Kong. 4. By the present ex parte application, the Plaintiff seeks an order whereby, in the event of the Defendant returning to Hong Kong, he should be restrained by injunction from leaving Hong Kong till the judgment debt has been paid. 5. The supporting affidavit shows that the Defendant's permanent place of residence is Australia, and it is only his work as a salesman which brings him to Hong Kong from time to time. The Plaintiff has cause to believe that the Defendant will return to Hong Kong, but fears that he might leave again before the bailiff can be alerted to take steps to execute the writ of fi fa. 6. It is the Plaintiff's intention that, should the Defendant return to Hong Kong after the issue of the proposed injunction, the Immigration Department should be required to prevent him from leaving till the judgment debt has been discharged. 7. This application raises both a substantive and a procedural issue. Substantively, the problem is whether an injunction could ever be available for the purpose the Plaintiff has in mind. The procedural point is, assuming the remedy of injunction to be suitable for the Plaintiff's purposes, does the District Court possess the jurisdiction to grant this remedy? 8. It will be convenient to take the procedural point first. 9. According to the recent Court of Appeal decision of Xavier v. Xavier (Civil Appeal No. 51 of 1976) the jurisdiction to grant ancillary relief conferred on the District Court by section 48 of the District Court Ordinance can be equated with the jurisdiction granted to the County Court by the almost identically worded section 74(1) of the County Courts Act 1959. 10. Section 48 is as follows:
11. From the cases and commentary arising from section 74(1) of the County Courts Act on the topic of Injunction at page 78 of the 1976 County Court Practice, I am satisfied that, if an application were made in the County Court for an injunction on facts similar to those before me now, the County Court would entertain it as within its ancillary jurisdiction. Likewise, I regard the present application for an injunction before me as within my jurisdiction by virtue of section 48 of the District Court Ordinance. 12. In the Xavier case, a judgment summons had been issued in the District Court to enforce payment of arrears of maintenance amounting to $18,000. In declining an application to have the debtor imprisoned for contempt for failure to pay these arrears, the learned District Judge ruled that his court lacked the jurisdiction to make such an order. The Court of Appeal reversed that ruling, holding that the District Court's jurisdiction in such a situation stemmed from section 48 of the District Court Ordinance. According to the learned District Judge the only court with jurisdiction to make an order for committal for contempt in respect of non-payment of a debt would be the Supreme Court: thus, although a debt of $18,000 representing maintenance arrears would otherwise be within the jurisdiction of the District Court, when it came to the step of enforcing payment by committal for contempt, the plaintiff would be required to commence separate proceedings in the Supreme Court. In refusing to countenance a situation where a step in the recovery of a debt within the jurisdiction of the District Court could only be taken by initiating separate proceedings in the Supreme Court, the Court of Appeal laid emphasis on how section 48(1) of the District Court Ordinance required the District Court to grant redress "in as full and ample a manner" as the Supreme Court would in the like case. 13. Clearly, in the case before me the District Court had jurisdiction to enter judgment for $20,000 for this contract debt. If any court is to issue an injunction aimed at enforcing the payment of this judgment debt, then surely it should be the District Court, for otherwise the remedy afforded by the District Court could not be said to be "full and ample". 14. A contrary view on the District Court's jurisdiction was expressed in The Excelsior v. Bernard N Da Silva VCJ 1543/75, but, with respect, I disagree with the learned District judge's ruling on this point. The facts in that case gave rise to issues identical to those in the present case. There the Plaintiff had obtained judgment against the Defendant in the District Court for approximately $13,000 in respect of an unpaid hotel bill. The judgment remaining unsatisfied, the judgment creditor made an application similar to the present one, seeking an injunction from a District Court judge to restrain the judgment debtor from leaving Hong Kong. According to the learned judge, the judgment creditor's claim before the District Court being for unpaid hotel charges, the application for an injunction to restrain the movement of the judgment debtor's body could not be said to be ancillary to that, so that the District Court lacked jurisdiction. In effect, the learned Judge appears to have treated the injunction application as if it were independent of and unrelated to the claim for the debt. 15. If in that case the judgment creditor's opening shot had been to apply to the District Court for the injunction before commencing the proceedings for the recovery of the debt, I might have agreed that the District Court lacked jurisdiction, for the District Court is not empowered to entertain proceedings which apply for an injunction in isolation (See Halsbury, Laws of England 4th Edition, Volume 10, paragraph 59), but where the injunction application is made consequent to and for the purpose of enforcing a judgment debt of the District Court I regard that situation as coming squarely within the ancillary jurisdiction provisions contained in section 48. 16. The practical consequence of the Excelsior decision is that if a judgment creditor in that situation wants an injunction he has to proceed in two jurisdictions: the District Court for the judgment on the debt and the Supreme Court for the injunction. That is the type of result which the Court of Appeal deplored in the Xavier case, and I regard it as equally undesirable in these injunction cases; hence, my respectful disagreement with the reasoning in the Excelsior case. 17. However, I have no quarrel with the ultimate decision reached in Excelsior. The application for an injunction was dismissed there, which is the same as what I am going to do here, but as will now appear, my reasons for so doing relate to substantive, not procedural matters. 18. Which modes are available for the enforcement of a judgment debt can be ascertained from the Rules of the Supreme Court, Order 45, Rule 1, paragraphs 1 and 2 which are operative in the District Court as well as the Supreme Court. Section 67 of the District Court (Civil Procedure) Rules also confirms the power of the District Court to imprison for debt. The relevant parts of Order 45 are as follows:
19. Omitted from the methods of enforcement listed in the said paragraphs 1 and 2 is any reference to injunctions. That omission need not necessarily be fatal to the present application, however, for paragraph 3 of the same Rule 1 goes on to state that "...... Paragraphs (1) and (2) are without prejudices to any other remedy available to enforce such a judgment or order as is therein mentioned ......" Thus, the crucial question is whether an injunction of the type Plaintiff seeks is another remedy available for enforcing the judgment debt in the present case. 20. Injunctions may be granted by the courts in Hong Kong when it appears "just or convenient" so to do: Supreme Court Ordinance, Cap. 4, section 19(1). From the English authorities on the identically worded section 45 of the Supreme Court of Judicature (Consolidation) Act 1925, it is clear that those words "just or convenient" do not confer on the courts an unfettered discretion to grant injunctions of whatever type and for whatever purpose the judge sees fit. The courts will only act on settled principles. See Halsbury's Laws of England, 3rd Edition, Volume 21, para 730. 21. In particular those words "just or convenient" do not authorise the court to invent new modes of enforcing judgments in substitution for the ordinary modes: Harris v. Beauchamp Brothers (1894) 1 QB 801 at p.807 and p.809. 22. Even the Plaintiff's solicitor in his submissions before me had to concede that his application was novel. In some spheres of the law novelty is not necessarily an impediment, but the categories of injunctions would appear to be closed. 23. That the courts do not consider themselves empowered to grant injunctions for the purpose of restraining absconding judgment debtors from leaving the jurisdiction can be inferred from three sources of authority of high standing. 24. Firstly there is the Final Report of the Committee on Supreme Court Practice & Procedure (1953: Cmnd 8878). On that Committee sat no less than four High Court judges as well as several distinguished academics. From paras 455 and 456 of that Report, it is clear that the Committee regarded the courts as powerless to prevent an absconding judgment debtor from leaving the jurisdiction. True, the Committee do not refer specifically to the non-availability of an injunction for this purpose, but the idea of using an injunction to achieve this end is hardly at such a level of legal ingenuity and inspiration that it is likely to have eluded this high-powered body of lawyers. The obvious reason why they do not even give injunction a mention in this context is that such a remedy is patently inappropriate here. 25. Secondly, a no less distinguished Committee produced a report in 1969 on the Enforcement of Judgment Debts (Cmnd 3909). The relevant paragraphs are 1246 - 1258. This time reference is made specifically to the possibility of employing injunctions in relation to the goods of absconding judgment debtors. In paragraphs 1250 and 1251, the Committee concludes that an injunction would not be granted to restrain a debtor from removing even goods from the jurisdiction. Although the possibility of restraining the debtor's person is not explicitly referred to, it would appear to follow that if the courts regard themselves as powerless to prevent the removal of property from the jurisdiction, then a fortiori they must have foresworn power to control the movement of the debtor's body. 26. Thirdly, no less an equity expert than Megarry J. regards himself as powerless to restrain an absconding debtor. In Felton v. Callis 1969 1 Q.B. 200 at p.214 he laments the courts lack of power to restrain a debtor after judgment, which contrasts with the position before judgment, England having its Debtors Act 1869, section 6, and the writ no exeat regno, Hong Kong having its Order 44A, but no longer the writ of no exeat which was abolished by section 46 of Ordinance 92 of 1974. 27. Megarry J. opined that the intervention of Parliament would be required before the courts in England could restrain departing debtors. Likewise in Hong Kong, legislation alone could confer this type of power on the courts. 28. In Hong Kong the legislature has provided creditors with a wide range of remedies for the enforcement of debts. Additions should now be made only after due legislative deliberation. The correct approach to these problems was enunciated in Horris v. Beauchamp Brothers (Supra). At p.807 comment was made on England's old Order XLII rule 3 and rule 28 which are similar in their effect to Hong Kong's Order 45 rule 1, para 3 in that they all preserve the courts' existing remedies. Davey L.J. had this to say,
29. Much has been made by the Plaintiff's solicitor of the special circumstances of Hong Kong which make it peculiarly convenient for judgment creditors to be able to cause their debtors to remain here till the debts are satisfied. An unsubstantiated assertion of this nature can carry but little weight with a court, and obviously policy considerations arise with which the legislature is far better equipped to deal. The court certainly can see some practical inconveniences, though, stemming from the type of order Plaintiff seeks. 30. Firstly, there would be practical problems in enforcing the order. A proper administrative procedure would have to be devised defining the respective duties of the bailiff, and Director of Immigration. Similar problems arose when the no exeat procedure was resurrected in Hong Kong three or four years ago after a long period of dormancy. In the 1953 Final Report of the Committee on Supreme Court Practice & Procedure, reference is made in para 456 to the administrative problems which arise in preventing someone leaving the country, and there the solution suggested is legislation. I consider there should be a similar solution in Hong Kong, rather than leaving the bailiffs and the Director of Immigration to sort out the problem as best they can as happened over the he exeat procedure. Also I am far from persuaded of the convenience of using the Director of Immigration as part of the Colony's debt-collecting machinery. The "Watch Lists" or "Stop Lists" might become unworkable if filled with the names of judgment debtors. 31. Secondly, besides administrative inconvenience, there is also the question of convenience to the debtor and the community. With respect, the order sought could be characterised as "half-baked". It intends that the Director of Immigration should refuse to allow the debtor to leave, but does not specify what should happen to the debtor then. It could result in a destitute debtor becoming stranded indefinitely in Hong Kong. There is no obligation on the creditor to have him imprisoned at the creditor's expense, as happens under a writ of fi fa if a creditor wants a remedy against the person of his debtor. A likely result would be the debtor becoming a charge on the Public Assistance Scheme. 32. Clearly all these consequences need to be thought through before the courts go granting injunctions like this, and the legislature alone can resolve the sorts of practical issues involved. 33. The court has found itself in the somewhat unenviable position of trying to establish a negative. For the Plaintiff, it has been more or less baldly asserted that an injunction can issue in the present circumstances. No direct authority was cited for the proposition. Not without difficulty, the court has done its best to show the contrary to be correct. Perhaps the absence of direct authority is because the position is so self-evident. To me it feels instinctively wrong to grant an injunction for present purposes, but I must confess that I have experienced difficulty in putting my finger precisely on the point of why not. Courts generally do not favour generalisations, but I will permit myself one. As far as I can conceptualize injunctions, they seem to be available to prevent violation or infringement of a person's rights, and it is hard to see what rights of the Plaintiff's the Defendant in the present case has infringed. 34. In fact a heavy onus rested on the Plaintiff. He wanted to take away from the Defendant a basic constitutional right - freedom of movement - which has existed in the Sovereign's realms since the time of Magna Carta. The position is summarised in Halsbury, 3rd Edition, Volume 7, para 618, under the heading "Constitutional Law",
In this respect the constitutional position is no different in Hong Kong from the United Kingdom. 35. The court will only assist the Plaintiff in depriving Defendant of his basic freedoms on good cause being shown and this the Plaintiff has singularly failed to do. 36. The application is accordingly dismissed.
Representation: Mr. Fairbairn of (Fairbairn Kwok & Wang) for plaintiff. |
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