Tse Sui Luen Jewellery Arts Co Ltd v. Chow Wing Kam
Read the full judgment text of HCA 3034/1973 on BabelCite. This High Court CFI judgment.
1. This is the second application for a discharge from debtor's prison under Order 49B. In his first application, the applicant did not disclose anything beyond his possession deposited with the Prison Authority and what is left in his bank accounts. In cross-examination, he admitted that he owed this debt entirely because he had an absconded customer who still owed him something like over a hundred thousand dollars. For this reason, his application was refused for non-compliance with the provis
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HCA003034/1973 IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) ACTION NO.3034 OF 1973 -----------------
Coram: LI, J. (In Chambers) Date of Judgment: 9th March, 1974. Present: Mr. A. Sedgwick (Johnson, Stokes & Master) for Plaintiff Mr. R. TANG (Samuel Soo & Co.) for Defendant ----------------- JUDGMENT ----------------- 1. This is the second application for a discharge from debtor's prison under Order 49B. In his first application, the applicant did not disclose anything beyond his possession deposited with the Prison Authority and what is left in his bank accounts. In cross-examination, he admitted that he owed this debt entirely because he had an absconded customer who still owed him something like over a hundred thousand dollars. For this reason, his application was refused for non-compliance with the provisions of paragraph (2) of rule 6 in Order 49B, which provides that the application of such applicant
2. In this application, he has filed affidavits making a full disclosure of his transaction with one Mr. TSOI who lived in Japan and he says that he himself was defrauded, in fact, by this Mr. TSOI who took away the emeralds, the subject matter of purchase between the applicant and the judgment creditor, without paying the applicant. In addition, his girlfriend or fiancee also filed an affidavit in support as to the real existence of this Mr. Tsoi and of their trip to Japan to chase after this Mr. Tsoi for payment for the emeralds. 3. Paragragh (3) of rule 6 in Order 49B provides that in order that the judgment creditor to succeed in opposing a discharge, such judgment creditor
4. This, admittedly, is a burden on the part of the judgment creditor. Despite the inherent difficulty in such proof, nonetheless, the burden is on the judgment creditor and it must be proved that whatever acts perpetrated by the judgment debtor, it was for the purpose of avoiding payment of the debt. 5. Having heard the evidence in this case, several factors have come to light. First of all, the transaction between the judgment creditor and the judgment debtor amounted to something like two hundred and twenty thousand odd dollars of which over a hundred and sixty thousand dollars had been paid. On the other hand, on the previous application, in cross-examination, the judgment debtor admitted that he did not tell the judgment creditor that he went to Japan to collect the debt. In the present application, however, he said that he did tell the judgment creditor. That goes against the credit of the judgment debtor's evidence in cross-examination. In addition, in his affidavit, the judgment debtor gave a telephone number which he said was given to him by this Mr. Tsoi from Japan saying that the number belonged to Mr. Tsoi's relative and he, the judgment debtor, had actually used that telephone number to get in touch successfully with this Mr. Tsoi. There is evidence, however, to contradict this completely. One Mr. TSANG Ming-yuen, who is an independent witness and who appears under subpoena, says that he has been using that telephone number for the last six, seven years without any change and there has been no such Mr. Tsoi ever staying with his family. Nor had he for the last six, seven years, entertained any friends of relatives or the friends of his children to live in that place or use that telephone. Thus this telephone number given by the judgment debtor must be false. Thirdly, the judgment debtor said, in para. 14 of his affidavit dated the 13th February, 1974, that he had previous dealings and had always given credit to this Mr. Tsoi. He further went on to say that "except this transaction" - which I understood to mean the transaction about the emeralds - this Mr. Tsoi had always paid his bill in full and performed his obligations. However, in cross-examination, it was quite clear that despite the previous credit or previous dealing this Mr. Tsoi had not fulfilled all his obligations. Having regard to the date of the affidavit, which is on the 13th of February, it is obvious that Mr. Tsoi owed him debts not relating to the transaction of the emeralds but also debts relating to the other previous transactions. This bit of his affidavit is obviously untrue. 6. It has been argued - and argued with some reason - that if the judgment debtor wanted to defraud the judgment creditor in any way, he would have defrauded the whole sum and the fact that he had repaid a substantial portion of that trade debt showed that there was a good faith on the part of the judgment debtor and he never really intended to avoid the payment of the debt. However, on the other hand, it is obvious that right from the start he admitted that he never told the judgment creditor he had such a customer by the name of Tsoi; he never told the judgment creditor that he went to Japan and that in his affidavit he had given an untrue statement in paragraph 14. Up to this second stage, I would say that the non-disclosure of this customer in the first instance and refusing to give his name to his judgment creditor was an act of bad faith and such act of bad faith was perpetrated and continued when the judgment debtor, in his affidavit, gave a wrong telephone number which has absolutely no connection whatsoever with this Mr. Tsoi. This is more so, particularly when he, the judgment debtor, says that the number was written down in his notebook and that his fiancee also supported him that he met this Mr. Tsoi. 7. In the circumstances, I have come to the conclusion that I cannot put any credence on the evidence of the judgment debtor and that of YU Chui-fung. I am satisfied that the judgment creditor has discharged his burden by cross-examination, and that, taking the totality of the evidence, there has been an act of bad faith on the part of the judgment debtor for the purpose of avoiding payment of the debt. Accordingly the application is refused. Costs to the judgment creditor. Representation: Mr. A. Sedgwick (Johnson, Stokes & Master) for Plaintiff Mr. R. TANG (Samuel Soo & Co.) for Defendant |