Onprofit Co Ltd v. Tan Tjin Kik

HCA003145/1983

Action No. 3145 of 1983

IN THE HIGH COURT OF JUSTICE

BETWEEN

Coram: Hon. Mantell J.

Date: 4th November, 1983

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JUDGMENT

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1. This was an application for discharge under rule 6 of Order 49B. The application was heard on 24th and 25th October this year and on 25th October, I ordered the release of the judgment debtor. I reserved my reasons. The hearing was in my chambers but I now deliver my reasons in court.

2. In the case of Lee Yip Tang and Lee Shing v. Miss Lee Yu Ying, I indicated that I would hear all future applications of this nature in court but in this case as in the other, I did not adjourn for that purpose so as to avoid the risk that the judgment debtor might spend more time in prison than was necessary.

3. Judgment was entered against the judgment debtor on 21st July 1983 in the sum of $585,884.56 with interest on the greater portion at the rate of 2% above prime lending rate.

4. Without further order of the court, he was arrested and imprisoned on 6th October 1983 under the authority of a writ of fi fa which included the usual command to the Bailiff to arrest and commit to prison in the event of the debtor's property being insufficient to satisfy the judgment debt. The praecipe did not contain any request that the writ of fi fa should contain such a command.

5. I have previously expressed doubt as to the lawfulness of imprisonment of a judgment debtor in such circumstances and I do not intend to reiterate the reasons for those doubts. ⁽¹⁾ The point was not taken before me and did not form the basis of my decision. In the event, I ordered the release of the judgment debtor because I was not satisfied that any of the grounds for refusing the application as set out in 0.49B r.6(3) had been proved by the judgment creditor.

6. The judgment creditor who was represented by Miss Liu had given timely notice of an intention to appear and oppose the application and also notice of an intention to crossexamine. There was no affidavit by the judgment creditor in opposition to the application. The judgment debtor was called by Mr. Chan and, having in effect repeated the contents of his application, was cross-examined by Miss Liu. The cross-examination was thorough but not unfair. Miss Liu said herself that she was likely to be "long winded" but in that I think she did herself an injustice. As I say, she.was thorough. She tackled the judgment debtor on the contents of his application. She questioned whether it would be possible for him to live on the means which he claimed to have available to him. But in the end, the main assault resulted from something which the judgment debtor is alleged to have said during the course of an earlier application before Master Emerson when he was seeking an order for payment of the judgment debt by instalments. On that occasion also, Miss Liu was present for the judgment creditor. She put to the judgment debtor that he had, on that occasion, claimed to have assets in Taiwan. The judgment debtor denied that he has or had any assets in Taiwan and denied that he ever said that he had assets in Taiwan. Miss Liu invited me to look at the notes made by the Master. With some reluctance, I did so. There is, indeed, a reference to "little assets" in Taiwan. Miss Liu sought my leave to give evidence. I did my best to discourage her but she was insistent. In the end, I allowed her to do so. I should say at this point that I consider it is a practice only to be adopted as a last resort. Miss Liu told me what she had in her notes. In the context of being asked about his sources of income, Miss Liu credits the judgment debtor with this reply "some of the money is from Taiwan and Indonesia and some from friends". She also has this answer "I have very little assets in Taiwan, not a great deal." Well, on the face of things, there appears to be a contradiction. But half way through his evidence in front of me, the judgment debtor made it plain that he was uncomfortable giving evidence in Mandarin and that his native tongue was Fukien of the Amoy dialect. Following that revelation, the interpreter was changed and we all got along a good deal better. I am told that before Master Emerson, the judgment debtor was attempting to give his evidence in Mandarin. Bearing in mind where the burden of proof lies, I am not persuaded to the conclusion on the basis of that discrepancy that there has been any wilful concealment of assets by the judgment debtor. Nor am I satisfied that any other ground sufficient to require me to refuse this application has been proved.

(1)    Lee Yip Tang and Lee Shing v. Miss Lee Yu Ying H.C.A.6832 of 1983

7. For those reasons, I ordered the debtor's release.

Representation:

Miss A. Liu of Fairbairn & Kwok for Plaintiff.

S.H. Chan of Chan, Lau & Wai for Defendant, Applicant.