Drexel Burnham Lambert Incorporated v. Tan Giok Sie

HCMP000014/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

NO 14 OF 1980

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Coram: Penlington, J. in Chambers

Date of Judgment: 15th October, 1980.

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JUDGMENT

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1. This was an application for discharge from prison by the defendant herein, which application was opposed by the judgment creditor.

2. The matter first came before me on the 6th of October when the applicant gave evidence on affirmation in support of his affidavit. In his affidavit he had listed his assets, which consisted largely of items of domestic furniture.

3. At the hearing the applicant was affirmed and tendered for cross-examination by Counsel for the creditor. He said he had no other assets other than those set out in his affidavit. He said he was not in regular employment but earned about $1,500 a month as broker. His wife did not work but had money, how much he did not know, and he lived on gifts from friends and relatives plus what his wife paid out. He and his wife with their three children live in a substantial flat in Causeway Bay which is air-conditioned but he said he only turned on the air-conditioning when relatives came to stay.

4. I found him to be a totally unconvincing witness. It seemed to me that his style of living was such that there was a probability that he did have income-producing assets. I was not prepared to accept his evidence about gifts from relatives and his wife's assets without some corroboration. I therefore adjourned the matter to the 15th October to enable the applicant to file a further affidavit setting out some particulars of how he was able to live as he did on $1,500 a month.

5. On the 15th I was informed that, on the advice of Counsel, no such affidavit had been filed. The applicant argued that the onus was on the creditor to prove that one of the grounds for refusing the application existed and he had tendered no such proof. He relied on the decision in Lai Cheuk-biu v Robertson Wilson Co. Ltd. 1978 H.K.L.R. 168 in support of that proposition.

6. I think this case is different from Lai Cheuk-biu. There it was held that the creditor had not proved any of the grounds set out in Order 49B and the Court must therefore grant the application. Here I found that, on a balance of probabilities, the applicant did have concealed assets. It is, in my opinion, not necessary for the creditor to tender evidence himself - in the great majority of cases he could not do so - but he may get such evidence by cross-examination of the applicant. Go Yet Wah v. China State Bank Ltd. 1958 H.K.L.R. 45.

7. On that ground I refuse the application.

Representation:

Mr. Wilfred Lee instructed by Lo & Lo for Plaintiff

Mr. Alfred Law instructed by K.Y. Woo for Deft.