The Hong Kong & Shanghai Banking Corporation v. Lo Dow Tuck
Read the full judgment text of HCA 14761/1983 on BabelCite. This High Court CFI judgment.
1. This is an application under Order 49B. On 7th March 1984 Master Barnett ordered that the Judgment Debtor do attend before me at 10.30 this forenoon to be orally examined and to produce the documents recited in that Order. At 10.31 the matter was called on and the Judgment Debtor was not present in Court. I directed that he called thrice without the Court and that was done. He is still not here and it is now 10.44. I ask Mr. Lui if Master Barnett's Order had been served, and he invited my a
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HCA014761/1983
BETWEEN:-
_____________ Coram: The Honourable Mr. Justice Jackson-Lipkin in Court. Date of hearing: 23rd March 1983 at 10.30 a.m. Date of delivery of judgment: 23rd March 1984
__________ JUDGMENT __________ 1. This is an application under Order 49B. On 7th March 1984 Master Barnett ordered that the Judgment Debtor do attend before me at 10.30 this forenoon to be orally examined and to produce the documents recited in that Order. At 10.31 the matter was called on and the Judgment Debtor was not present in Court. I directed that he called thrice without the Court and that was done. He is still not here and it is now 10.44. I ask Mr. Lui if Master Barnett's Order had been served, and he invited my attention to an Affirmation of Service lodged by Messrs. Johnson, Stokes & Master for the Plaintiff. It is an Affirmation of Mr. Alan Chan King-lun, (bizarrely described as Chang King-lun Alan), and from that Affirmation, it appears that Service was effected by ordinary post from the Mong Kok Post Office on 10th March. The address of the Judgment Debtor is given as 6th floor of Join-In Estate in the Container Port Road area of Kwai Chung. There are two points about that. The first is that the address is insufficient for the purposes of an application of this kind and I invite the attention of those instructing Mr. Lui to the decision of the Court of Appeal in Ever Finance Limited v. Yuen Wai Piu, Civil Appeal No. 53 of 1982. 2. The second, and more important point, is this. These are proceedings which could affect the liberty of the subject, because an Order that I could make upon the examination of the Debtor, is that he be committed to prison; Order 49B even after the bruhaha recently, which resulted in an Ordinance containing amendments to Rules of the Supreme Court (itself an extraordinary way of proceeding), nothing apparently was done to make any provision in Order 49B for personal service. Mr. Lui said that, in the absence of any provision in the Order for personal service, those instructing him up were properly entitled to fall back on Order 65 rule 5, which provides that, where personal service is not specified in any Order, service may be effected by other means - including postal service. 3. I appreciate that Order 65 rule 5(1)(c) does provide for service in such other manner as the Court may direct. But there is nothing in Order 49B to oblige Solicitors to apply to the Court for such Direction. If one looks at Order 45 rule 7, however, one finds there that personal service is a pre-requisite to enforcement – Order 45, of course, being for enforcement of Judgments and Orders. There is a clear conflict: Order 49B is clearly in pari materia with Order 45, and, if personal service is a pre-requisite for enforcing Judgments or Orders, ought it not to be a pre-requisite for my making any committal order or order for arrest, where a Judgment Debtor fails to attend for examination. In my judgment, the duty of Solicitors acting for Judgment Creditors is to ensure that personal service is attempted in the first instance, whatever otherwise may be the consequence of the absence of any provision for personal service in Order 49B. Speaking for myself, and I know at least 2 of my brethren, I am not prepared to make any order for arrest or committal under Order 49B where there has not been even an attempt at personal service. This matter will be adjourned, therefore, for personal service on the Judgment Debtor of the Order of Master Barnett, to which I have referred. 4. If personal service can not be effected, there will be liberty to the Judgment Creditor to apply to me any forenoon at 9.45 for a Direction as to what other type of service should be used; for example, substituted service by advertisement in Chinese newspapers circulating in Kwai Chung, posting on 6th floor of the Estate to which I referred, and the like. I am not giving an exhaustive list here; I merely say that is the sort of thing that I would consider permitting if there were evidence before me that personal service could not be effected. 5. This examination, therefore, will be adjourned sine die, not to be restored until personal service on the Judgment Debtor of Master Barnett's Order has been effected or a Direction has been made by me as to a different form of service. 6. I will reserve the costs.
Representation:
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