Re Official Solicitor

By a majority of 2 to 1, the Full Bench, refusing to follow Producers Finance & Investment Ltd. v. Tse Yee Wan [1983] N.C.A. 9637, held that imprisonment of a judgment debtor by the bailiff under a writ of fi.fa. was lawful so that habeas corpus would not lie.

Order: 1. Application dismissed.

2. No order as to costs.

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

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Coram: The Honourable Mr. Justice Liu, the Honourable Mr. Justice Rhind and the Honourable Mr. Justice Kempster in the Full Bench.

Date of Hearing: 25th, 28th; 29th of November 1983.

Date of Delivery of Judgment: 12th December,1983.

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JUDGMENT

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LIU J.

1. On the 18th November 1983, an ex-parte application for a writ of habeas corpus was made on behalf of some 51 incarcerated debtors to O'Connor J. in chambers apparently under order 54 rule 1(1)(a) Rules of Supreme Court. Pursuant to Order 54 rule 2(1)(a), the learned judge directed that an application therefor be made by originating motion to the Full Bench. Directions were given for the service of the originating motion on the Commissioner of Correctional Services and on as well the judgment creditors or their solicitors as the judgment debtors. These directions for service have been complied with.

2. On the return date of the originating motion on Friday, the 25th November 1983, time was abridged for these proceedings to be heard in part immediately and the remainder thereof three days later on the following Monday.

3. At the conclusion of counsel's addresses, a number of these applicants restrained either as defendants or judgment debtors had, in the meantime, been released. In other cases, each of the plaintiffs or judgment creditors purported to boost his stance by an order of committal obtained elsewhere in the course of these proceedings. The basis on which these orders of committal were procured was not disclosed to this Full Bench; nor were we told whether these orders of committal had, in fact, been served or how the various existing modes of detention were said to have been fortified or regularized. Mr. Litton for the incarcerated defendants or debtors in these cases was content to seek leave to withdraw their motion for a writ of habeas corpus. We acceded to those applications.

4. We are therefore left with some 30 judgment debtors detained on the force of a writ of fieri facial in terms of Form No. 53 in Appendix A to our Rules of Supreme Court. Mr. Ho Kwan Yau, the judgment creditor in person, counsel for the other judgment creditors and counsel for the Commissioner of Correctional Services took no point on the affidavit evidence. In fact, no technical objection was raised. In the cases represented in turn by Mr. Clayton and Mr. Kotewall, no real resistance was offered, and subsequently counsel was not in attendance. In the result, the only matter at issue before this Full Bench is whether or not the detention of these remaining 30 judgment debtors under the writ of fi. fa. is lawful.

5. A study was made of the history of execution of judgments in the Final Report of the Committee on Supreme Court Practice and Procedure presented by the Lord High Chancellor, Lord Simonds to Parliament by command of the Queen in July 1953 ⁽¹⁾ and the Report of the Committee on the Enforcement of Judgment Debts presented to Parliament by another Lord High Chancellor, Lord Gardiner by command of the Queen in February 1969.⁽²⁾ I should begin with this quotation:

"The system of execution in the High Court is not a planned system. Like many of our institutions, it has grown haphazardly and has altered from time to time to meet such needs as seemed to arise. It is a structure of some complexity, and much of it exists only in its present form for historical reasons."⁽³⁾

6. Many forms of execution have been in use. To name a few: the writ of fieri facias (fi. fa.) for goods and chattels and at times leasehold land, the writ of elegit for land in general and the writ of capias ad satisfaciendum (ca. sa.) for the imprisonment of a debtor with insufficient assets to satisfy his adjudged liability. The writ of ca. sa. is a common law writ. ⁽⁴⁾ After the Debtors Act 1869, the writ of ca. sa. was rarely put to use in England except in some of the exemptions under section 4 of that Act and formerly for the enforcement of Crown debts.⁽⁵⁾ The operation of ca. sa. in aid of the Crown has now been further restricted. ⁽⁶⁾

7. The writ of ca. sa. in in fact a writ of execution in aid of another writ of execution.⁽⁷⁾ It could previously be resorted to for bringing about the imprisonment of a judgment debtor without any order of the court. ⁽⁸⁾ The command to arrest, capias meaning "that you take", ⁽⁹⁾ may be given in varying terms, one of which is to "have his body before us in the Queen's Bench Division of our High Court of Justice immediately after the execution hereof". ⁽¹⁰⁾ That is a writ of ca. sa. in general form,and upon the arrested judgment debtor being so brought before a judge, he will not be bailable but must be immediately committed to prison. See Lewis v. Morland. ⁽¹¹⁾ But the command of capias may take a different form as that contained in a writ of execution formerly issued for the enforcement of all Crown judgment debts, which "in practice (had) taken the place of the ancient 'Long Writ' ". The writ so prescribed combined in one single writ three modes of execution by fi. fa. for the attachment of chattels, elegit for the attachment of land and ca. sa. for the arrest and imprisonment of an impecunious judgment debtor. ⁽¹²⁾ The command to arrest and imprison as set out in Mather, is in these terms:

"And if it shall happen that the goods and chattels, lands and tenements of the said (judgment debtor) shall not be sufficient to pay the said money Then that you omit not by reason of any liberty of your bailiwick but that you enter the same and take the said (judgment debtor) by his Body wherever he shall be found in your said bailiwick and that you keep him in safe custody in Our Prison until he hath fully satisfied Us the said debt." ⁽¹³⁾

8. It is hoped that this outline will assist in an attempt to understand the almost identical form of writ of execution prescribed by our last superseded Code of Civil Procedure, Form 39, and the writ of fi. fa by our present Rules of Supreme Court, Form 53.

9. Each of these 30 judgment debtors has been and remains under restraint on the force of such a writ of fi. fa. Of these 30, a few have unsuccessfully applied for discharge, but nevertheless no order of committal has been made.

10. Next I turn to the legislative history in quest of the origin of our form of writ for the enforcement of a judgment for the payment of money: By Ordinance No. 15 of 1844, the Supreme Court was first constituted to replace the Court formerly holden by the Chief Superintendent. Under section 3 of that 1844 Ordinance, English law was to be "in full force" "except where the same (should) be inapplicable to the local circumstances" "or of its inhabitants". The power of the Hong Kong Supreme Court to detain judgment debtors in execution was thus assured. For the modes of execution, as a matter of procedure, the English practice was ordained by that very same section 3 to prevail unless "provided for by the Ordinance" or "unless and until otherwise ordered by any rule of the said Court". Therefore, the common law writ of ca. sa. to arrest and imprison was made equally available to Hong Kong.

11. Summary jurisdiction was also conferred on the Supreme Court by section 113 of that Ordinance in 1844. For the execution of a judgment for the payment of money given in its summary jurisdiction, a creature of statute law,there was a need for prescribing a statutory mode of execution. Hence the Chief Justice was empowered by its section 123 "to issue a precept", "in the nature of a writ of fieri facias, or capias ad satisfaciendum". This provision inferentially affirmed the free access of the Supreme Court, sitting in its unlimited jurisdiction, to these common law writs in execution. But for execution in its statutorily created summary jurisdiction, a special form of precept was laid down for commanding the Bailiff to arrest a judgment debtor if he "shall not find any goods, chattels, or effects belonging to him".

12. In 1845, it was thought expedient to have the inherent and statutory jurisdiction of the Supreme Court dealt with by "separate and distinct ordinances". The statutory summary jurisdiction of the Supreme Court was thereupon expunged from Ordinance No.6 of 1845 which legislated exclusively for the Court's unlimited jurisdiction. English practice was made to prevail in Ordinance No.6 "unless and until otherwise ordered by the rule of the said Court", and there was no necessity for continuing to prescribe any precept in that Ordinance. Consequently, Ordinance No.6 of 1845 was silent on such statutory form for execution. When the Supreme Court was simultaneously re-invested with statutory summary jurisdiction by Ordinance No.9 of 1845 which came into operation on the same day as Ordinance No.6, the former precept for the arrest of a judgment debtor in execution of a judgment for the payment of money reappeared in the latter Ordinance but this time as a writ or precept. Whilst the precept in 1844 was a combined process in the nature of only a writ of fi. fa. and a writ of ca. sa., the new writ or precept included "lands, tenements and hereditaments".

13. In 1862, a separate Court of Summary Jurisdiction was established by an Ordinance No.7 of that year. Execution of a judgment for the payment of money by writ or precept in the same form was again provided for. ⁽¹⁴⁾

14. On the 30th September 1873, the Court of Summary Jurisdiction was abolished and merged with the supreme Court as its Summary Jurisdiction by ordinance No.14 of 1873. On the same day, "The Hong Kong Code of Civil Procedure" was introduced by Ordinance No.13 of 1873 whereby the English practice was allowed to rule the day save insofar as it related to matters already dealt with in the Ordinance. ⁽¹⁵⁾ Section 98 of this ordinance No.13 also preserved all existing Supreme Court forms in use. Therefore, the writ or precept for the arrest of a judgment debtor continued to be available to its summary jurisdiction as the common law writs to its unlimited jurisdiction.

15. The Hong Kong Code of Civil Procedure created by Ordinance No.13 of 1873 was "to consolidate and amend" the practice and procedure in the Supreme Court and "to provide a uniform code of procedure". In 1901,time was ripe for according recognition to our very own local code, and Ordinance 3 of 1901 was finally enacted "to establish a Code of Civil Procedure." For the first time, two writs of execution were introduced for general application, viz. Form No.29 - "Writ of Execution of Judgment for Immovable Property" and Form No.30 -. "Writ of Execution of Judgment for Money by Attachment of Property". The latter was couched in terms of a revenue writ for the enforcement of Crown judgment debts taking the place of the ancient "Long writ''. This writ of execution in Form 30 also combined in one writ the same three modes of execution, fi. fa., elegit and ca. sa. The command of capias was in language identical with that now placed within the paratheses of Form No.53, writ of fieri facias, in our current Rules of Supreme Court. It is worthy of note that in this combined form and in the nature of fi. fa., elegit and ca. sa., the writ was nevertheless one writ and that in Hong Kong the common law writ of ca. sa. has never been known to have been invoked since 1905, the first year of publication of our law reports.

16. The Code of Civil Procedure so established by the 1901 Ordinance was abruptly converted into Regulations by the Revised Edition of the Laws Ordinance 1948 and published in Volume VII of the Griffin's Edition as subsidiary legislation. These two very prescribed forms - "Writ of Execution of Judgment for Immovable Property" and "Writ of Execution of Judgment for Money by Attachment of Property" - were retained. Only in 1958, through G.N.A. 4/58, a third form of writ of execution concurrently for immovable and movable property made its debut.

17. Our Code of Civil Procedure was superseded by the Rules of Supreme Court 1967. As they now stand, our Rules of Supreme Court have embraced several English writs of execution including two writs of execution in aid, but the form of the "Writ of Execution of Judgment for Money by Attachment of Property" is faithfully kept intact with only a slight insignificant variation in the language used. The command to the bailiff in regard to the capias is, however, repeated verbatim. It retains the essence of a revenue writ which replaced the ancient "Long Writ" and combined in one writ the said three modes of execution. The only obvious difference appears in its description. It is now called a writ of fieri facias.

18. To complete the legislative history: The Rules of Supreme Court 1967, when they were first brought into operation by GN 1342/67, omitted the former reference to imprisonment of debtors in Order 17 rule 3 of our Code of Civil Procedure and excised from the writ of fieri facial (Form No.53) the command of capias. Later in the same year, by LN 160/67 gazetted on the 30th September, the previous provision for imprisonment of debtors was reinstated as part of the new Order 49B, a note, viz. "App. A Form 53" was inserted in the margin of order 49B and Form 53 itself was also restored to its former glory by the reintroduction of the command of capias in identical terms ending with the same rider: "And the Court has fixed support and maintenance allowance at the rate of ... a day." Some 9 years later, by LN 51/76 gazetted on the 20th February, the command of capias was put in parentheses with the following footnote: "N.B. The words in square brackets are only to be included on the express instructions of the party applying for the writ of fieri facial to issue."

19. Whether the consolidation, codification or regulation of our High Court practice and procedure was by means of an Ordinance or subordinate legislation, endeavours were confined to setting up a workable system and the power  of the High court to imprison judgment debtors at common law has never been eliminated or impaired. Different cannons of construction are being suggested for the interpretation of the effect of codifying or consolidating legislation on common law rights, ⁽¹⁶⁾ but throughout our legislative history, there has been no and definitely no clear and unambiguous provision to eradicate or diminish such inherent power at common law to enforce judgment by imprisonment. ⁽¹⁷⁾ I need not refer to the long line of precursors to the current section 3 of the Application of the English Laws Ordinance, which explicitly keeps alive the treasured common law. Section 12(2) of the supreme Court Ordinance merely serves to state, so succinctly observed by O'Connor J. in R. v. Chu Kwan Kong: ⁽¹⁸⁾"where jurisdiction lies in respect of the applicable laws" but not to set "out the English laws which are applicable or in force in Hong Kong". There would seem to be no valid reason for the common law writ of ca. sa. not to he able to stand its ground in the face of all these prescribed forms. But in any case, this locally prescribed mode of execution formerly called "Writ of Execution of Judgment for Money by Attachment of Property" and now simply "Writ of fieri facias" could, in my view, be legitimately used in the exercise of the Supreme Court's power of enforcement by imprisonment at common law at least until 1967 when our Code of Civil Procedure was wholly superseded.

20. To summarize:

(1)	The authority at common law to imprisonment judgment debtors of our High Court has not,in any way,been abrogated.
(2)	For this purpose, there existed the common law writ of ca. sa. which would seem to have survived all the prescribed forms.
(3)	The writ of ca. sa. is to issue generally without any order of the court.
(4)	But the writ of ca. sa. is itself a writ of execution in aid of another writ of execution, and as such leave for its issue is required under Order 46 rule 3 of the Rules of Supreme Court.
(5)	The writ of fi. fa. for chattels and leasehold land may, on its own, issue immediately "as a matter of course without leave and without the necessity for prior notice to the debtor".(19)
(6)	Whilst there has been no abrogation of our High Court's common law power to arrest and imprison judgment debtors, the mode of execution for such arrest and imprisonment has generally taken a different prescribed form, Form No. 53 which combines in one writ the three modes of execution by fi. fa., elegit and ca. sa.
(7)	In our High Court, whether or not the common law writ of ca. sa. is still available, for the arrest and imprisonment of a judgment debtor, we are and have since 1901 been using a single writ of execution known as "Writ of Execution of Judgment for Money by Attachment of Property" until 1967 and thereafter "Writ of fieri facial".
(8)	Such usage has not been challenged for 82 years since 1901 and 16 years since 1967.

21. What then is the effect of the change brought about in 1967?In 1967, our Rules Committee transplanted, inter alia, the entire English order 45 rule 1 with the exception of its reference to the Debtors Acts1869 and 1878 and section 139 of the County Courts Act 1959. The English Rule 1(1) provides a list of six methods for enforcing a judgment or order for the payment of money. In Hong Kong, to that list is added another method of enforcement in paragraph (g) by way of "an order of committal made under Order 49B"."Appendix A Form 53" was later in 1967 added by the Rules Committee to the margin of Order 49B. Much play was also made by counsel on the ultimate paragraph in Form 53 for the court to fix support and maintenance allowance for the detention of a judgment debtor.

22. The real bone of contention is, as I have said, whether the 1967 transplant of the English Order 45 rule 1 has drastically altered our practice and procedure for the arrest and imprisonment of a judgment debtor. On the imprisonment of a person for a civil debt, a recent judgment was delivered in the High Court which had not been exhaustively assisted. ⁽²⁰⁾ A judge's direction to the Assistant Registrar in 1970 also touched upon the new mode of execution in this new paragraph (g) by means of "an order of committal made under order 49B".⁽²¹⁾ I have taken full advantage of the observations made in both of those proceedings.

23. Having established the power for the detention of a judgment debtor as vested in our High Court, these proceedings will rest solely on the interpretation of the relevant rules. Whatever the purport of the marginal note "Appendix A Form 53" to Order 49B is, section 18(3) and section 31 of the Interpretation and General Clauses Ordinance would clearly put this marginal note beyond the reach of these judgment debtors as an aid to construction. If the language of the subordinate legislation is plain and unobscure, it would also not be permissible to resort to the forms thereby prescribed for its proper construction. ⁽²²⁾

24. In the list in Order 45 rule 1(1) of our Rules of Supreme Court, seven modes of execution are set out. Far too often it is forgotten that these seven modes of enforcement (a) - (g) in the list "are not alternative, but cumulative remedies". ⁽²³⁾ Of these seven cumulative remedies, I need merely examine the writ of fi. fa. provided for in paragraph (a). It is one of the seven Cumulative modes of execution, all there for the asking. If the choice were to be a writ of fi. fa., the crucial considerations must be whether it is an appropriate mode of execution of a judgment for the payment of money and what its functions are. As to that, one turns to Order 45 rule 12(1) for its form, and that would lead to Form No.53 in Appendix A to the Rules of Supreme Court. Form No.53 then is the prescribed writ of fi. fa. which combines in one single writ three modes of execution by fieri facias, elegit and capias ad satisfaciendum. The same form has been in use for execution of a judgment for the payment of money since 1901. What are its functions? In plain language, the writ of fi. fa. as prescribed contains a command to the bailiff in regard to the capias. That command will have to be obeyed. The issue of the writ of fi. fa. has never been made dependent on any prior order or leave. The marginal reference to "Appendix A Form 53" of Order 49B cannot be craved in aid to construe that particular Order. Even less can, from where it appears as a marginal note, be made capital of in the interpretation of another Order and rule, such as Order 45 rule 1(1)(a). Call it what you will, the utility of a writ of execution in this form has stood the test of time and is beyond doubt. Order 45 rule 1(1)(a) could not be, in my view, clearer or more unambiguous. It unequivocally directs the use of a prescribed form which commands the bailiff to act. The long usage of this prescribed mode of execution so deeply rooted and jealously guarded throughout our legislative history lends colour to such interpretation. ⁽²⁴⁾ The provision is susceptible of no other meaning.

25. If it should prove beneficial to further elucidate the all too obvious intention of the Rules Committee, what must not be lost sight of is the general rule that the clear language in order 45 rule 1(1)(a) warrants no interpretation by refernce to any form thereby prescribed. Even if the contents of Form 53 had to be taken account of, the fixing by the court of support and maintenance allowance for the detention of the arrested debtor referred to in its last paragraph has never been made a condition precedent to the issuance of the writ of fi. fa. The issue of the writ of fi. fa. on a praecipe "takes place on its being sealed by the Registrar" in accordance with Order 46 rule 6(1). There is no other known requirement. Further, the fixing of such allowance does not truly concern the liberty of the subject which is to be deprived of by the execution of the writ selected. Therefore, the fixing of this allowance cannot be a matter within the exclusive jurisdiction of a judge, and by virtue of Order 32 rule 11(1), the Registrar may perform the function of the court. "Court" in that last paragraph in Form 53 must mean, in its proper context and the known circumstances, the Registrar. Thus, it would seem that the Registrar may fix such support and maintenance allowance and that the recently added definition of "the Court" in Order 1 rule 4(2) meaning, inter alia, the Registrar by LN 275/83 gazetted on the 31st August 1983 could take the matter no further. Lastly, that last paragraph in Form No.53 has been incorporated as part of the prescribed form at least since 1901, long before the introduction of these seven modes of execution under Order 45 rule 1(1). It would be hardly logical to link up that archaic paragraph with a recent provision for the purpose of seeking to illustrate the necessity for a prior order of committal.

26. Conversely, if it should be legitimate to embark on an examination of Form 53, what would immediately leap to mind is its reference to Order 45 rule 12. It also unmistakably bears the heading of "Writ of fieri facial" as specified in paragraph (a) of Order 45 rule 1(1). The note at the end of Form 53 allows the command of capias to be included on the express instructions of the party applying for the writ offi. fa. to issue. It is a reminder pre-eminently calculated to confirm that such a command forms part of the writ of fi. fa.

27. In conclusion, I take the view that each of the writs of fi. fa. in these proceedings is an appropriate mode of execution and a lawful means for the arrest and imprisonment of a judgment debtor.

28. It is not necessary for me to speculate why an order of committal under Order 49B was provided for as an additional cumulative mode of execution. It may very well be that as an order of committal under category (e) or a writ of sequestration under category (f) will not generally be available to a judgment creditor, these remedies being confined to the enforcement of an order which specifies a time for payment of the adjudged sum, ⁽²⁵⁾ a new mode of execution by way of an order of committal under Order 49B was introduced so as to enable a creditor to have his judgment debtor incarcerated on any judgment granted without any fixed time for payment. Again, it may very well be that it was considered desirable to follow suit as regards the requirement of such an order of committal by the English Debtors Act, 1869. It would be futile for me to indulge in such unrewarding surmise for I need not really consider whether Hong Kong had or has since 1967 had one or two systems for the arrest and detention of a judgment debtor. Suffice it for me to hold, as I have, that Order 45 rule 1(1)(a) is, in its clear and unambiguous language, an enabling provision for the lawful arrest and detention of a judgment debtor on a writ of fi. fa.

29. Likewise, I need not express any concluded view on whether insofar as it contains a command in the nature of the old common law writ of ca. sa., the prescribed Form 53 would require prior leave for its issue as a writ of execution in aid of another writ of execution under Order 46 rule 3. However, the better view seems to be that no such leave would be necessary. In its prescribed Form 53, the Hong Kong writ of fi. fa. is in terms very similar to a revenue writ replacing the ancient "Long Writ" which was considered as one writ. As a single writ, though with an elaborate composition, our writ of fi. fa. cannot be a writ of execution in aid of another writ of execution. There is also no provision requiring prior leave for its issue, and as a writ of fi. fa., by its very nature, in practice it would require no prior leave or notice to the judgment debtor.⁽²⁶⁾ Furthermore, our Rules of Supreme Court has incorporated two writs of execution in aid of another writ of execution which, by the terms in their respective prescribed forms, expressly refer to prior leave before issue. Form 53 contains no like reference.

30. Non-compliance with Rules of Supreme Court is nowadays only an irregularity.⁽²⁷⁾ Even if an order of committal, prior leave and a judge's order for fixing support and maintenance allowance were all essential pre-requisites for the issue of a writ of fi. fa., non-observance of these requirements would be no more than matters of irregularity. Thus, before the writ of fi. fa. is set aside, the detention of each of these judgment debtors cannot said to be unlawful.

31. For all these reasons, I am constrained to hold that the imprisonment of all these 30 judgment debtors is not unlawful. I would, therefore, dismiss the originating motion.

32. On previous applications for costs against the Official Solicitor personally, I was drawn to the submission that the absence of any proper enquiries coupled with the unsatisfactory state in which the supporting affidavit was presented amounted to "lack of justification". Mr. Litton informed us that he was not appearing for the Official Solicitor who must be given an opportunity to show cause before any criticism could have been fairly directed against him. In those circumstances, I could find little real justification for unduly prolonging the proceedings. But here, as regards the 30 judgment debtors, the Official Solicitor acted promptly in response to the invitation of Mr. Justice Mantell and his conduct cannot, in any way, be impugned. Subject to what counsel have to say, I propose to make no order as to costs. There is one outstanding application for costs in favour of a firm of solicitors, Messrs. Cheung, Tong and Rosa and that will have to be dealt with after we have heard submissions from all concerned.

Rhind, J.:

The Original 51 Prisoners For Debt

33. Originally, the habeas corpus proceedings now before the Court related to 51 prisoners for debt.

34. Since the commencement of the proceedings, 15 of those prisoners have been released from gaol, either because the debt has now been paid or because the creditor no longer chooses to keep his debtor in prison. The detention of a further 6 of the prisoners is acknowledged by their counsel, Mr. Henry Litton Q. C., to be lawful. That batch of 6 prisoners is now detained by virtue of orders of committal made by Mr. Justice Addison under Order 49B (1) of the Rules of the Supreme Court. Mr. Justice Addison's orders, which were made after the present habeas corpus proceedings were launched, have now rendered lawful the imprisonment which had previously been challenged as unlawful.

35. Of the original 51 prisoners, there now remain 30 whose continued detention is challenged as unlawful.

The Remaining 30 Prisoners For Debt

36. 7 of these are women. They are in prison at Tai Lam Centre For Women. The 23 men are in either Tai Lam Prison or Lai Chi Kok Prison.

37. Against each and every one of these 30 prisoners, there is an outstanding judgment debt. How did they actually get put into prison? It was like this.

38. First of all, judgment was entered against each debtor for the amount of the debt he or she owed. At that stage, the debtor became what is known as a judgment debtor, and the person to whom the debt is owed became the judgment creditor.

39. The judgment creditor (or more usually, his solicitor) then filled in a form known as a Praecipe, asking for the issue of a writ of fieri facias ("fi-fa"), which is a writ directing the bailiff to seize and sell the judgment debtor's goods in satisfaction of the judgment debt. That Praecipe was then lodged in the Supreme Court Registry together with a written request from the judgment creditor that if the bailiff found insufficient property to satisfy the judgment debt, he was to arrest the judgment debtor and put him in prison.

40. Once that form known as the Praecipe, accompanied by the written request for imprisonment, is filed in the Supreme Court Registry, a clerk there puts the court's seal on a writ directing the bailiff to seize the judgment debtor's goods, and if their sale does not realize enough to satisfy the judgment debt, to arrest the judgment debtor and put him into prison.

41. Without any order from a Judge, the bailiff goes forth, and, on the authority of the writ sealed and signed by one of the Registry clerks, arrests the debtor if insufficient goods are found. The bailiff then hands the judgment debtor directly over to the Commissioner of Correctional Services for the purpose of being kept in prison for a period of up to a year.

42. In carrying out his task, the bailiff is obeying the Royal command set forth in the writ. It is in the name of the Queen that the bailiff has arrested one of Her subjects, and put him straight into prison without there first of all being the opportunity for one of the Judges to see whether there might exist some good reason why the debtor need not go to prison.

43. Prison is not the inevitable destination of all judgment debtors in Hong Kong. A judgment debtor who is aware of his rights will know how he can apply to a Judge under Order 47, rule 1 for a stay of execution of the judgment. There is also Order 13 rule 8 which can be used to similar effect. By availing themselves of those provisions, many judgment debtors can in practice fend off prison by obtaining the leave of a Judge for a stay on condition that the debt is to be paid off by specified instalments. (See the White Book 47/1/1).

44. The advantage of a requirement that imprisonment can only be on the order of a Judge is that on the occasion of entertaining the judgment creditor's application for the order, the Judge will have the opportunity of ascertaining whether it might be an appropriate case for a stay of execution. Judgment debtors who would otherwise be unaware of their rights can in that way be spared unnecessary imprisonment.

45. There is no doubt that, at present, judgment debtors who are not concealing their assets, nor otherwise acting in bad faith, will, on application to a Judge under Order 49B(6), be released from prison. How much more sensible it is to operate a system which ensures that such judgment debtors do not go there in the first place.

46. It does seem more than a trifle odd that in Hong Kong in the year 1983 a citizen can be deprived of liberty as the result of an administrative process carried out in private.

47. However, in taking the present 30 judgment debtors off to gaol without any order of a Judge, the bailiff was doing no more than following the long-established practice of Hong Kong.

48. The present proceedings raise the question whether that long-established practice is really rooted in good law.

49. No one doubted the legality of the Hong Kong practice till recently. Now, Mr. Justice Mantell, who is the latest addition to the High Court Bench from England, has set the Hong Kong dove-cots a-flutter by holding in a series of judgments, culminating in Producers Finance and Investment Ltd. v. Tse Yee Man, ⁽¹⁾ that the practice here is less than sound.

50. How a judgment is enforced in Hong Kong is set out in Order 45, rule 1(1):

"Enforcement of judgment, etc., for payment of money

1(1) Subject to the provisions of these rules, a judgment or order for the payment of money, not being a judgment or order for the payment of money into court, may be enforced by one or more of the following means, that is to say:

(a) writ of fieri facias;

(b) garnishee proceedings;

(c) a charging order;

(d) the appointment of a receiver;

(e) in a case in which rule 5 applies, an order of committal;

(f) in such a case, writ of sequestration;

(g) an order of committal made under Order 49B."

51. It was common ground that, if anywhere, the justification in law for imprisoning judgment debtors must be found under either (a) or (g), namely the writ of fi f a, or an order of committal made under Order 49B.

52. Mr. Osbourne for the Commissioner of Correctional Services sought to argue that these 30 prisoners had in fact all been committed to prison under Order 49B, as in his view "order of committal" in (g) did not necessarily mean the order of a Judge. He was plainly wrong on that. It is inconceivable that "order of committal" in (g) means something different from "order of committal" in (e), which relates to contempt of court where he had to concede an order of a Judge is necessary. Moreover, one cannot simply ignore the provision in Order 49B rule 2 that "When a judgment debtor is committed to prison in execution of the judgment, the Court shall fix whatever monthly allowance it may think sufficient for his support and maintenance, not exceeding $100 per diem". "Court" in Order 49B has always meant "Judge". In particular, that meaning emerges most plainly in rule 6, and there is obviously the same meaning throughout the whole Order. Not only can it be inferred that "Court" means "Judge" because of the use of a capital "C", but, in context, no other meaning makes sense.

53. Since a very recent amendment to Order 1 rule 4(2), "Court" can mean "Registrar" as well as "Judge", unless the context otherwise requires, but that amendment in no way advances Mr. Osbourne's argument.

54. Mr. Warren Chan for the judgment creditors refrained from seeking to associate himself in any way with Mr. Osbourne's argument to the effect that there could be an order of committal under Order 49B other than through a Judge. I think Mr. Chan was right to adopt that course, because, frankly, the point taken by Mr. Osbourne was unarguable.

55. The sole plank on which Mr. Chan rested his case was that the writ of fi fa referred to in Order 45 rule 1(1)(a) is such that it lawfully empowers the bailiff to arrest and imprison the judgment debtor. For the determination of the present case, it therefore becomes crucial to ascertain what is meant by a writ of fi fa in Hong Kong.

The Writ of Fi-Fa Hong Kong Style

56. The writ of fi fa has been known to common lawyers for centuries. Conventionally, it has always been used for the single purpose of causing the debtor's goods to be sold towards satisfaction of the judgment debt. In 17 Halsbury's Laws of England (4th Edition), paragraph 462, it is described as being:

"expressed in the form of a royal command directing the sheriff of the county in which the judgment debtor's goods are situate to seize in execution such of the judgment debtors goods, chattels and other property as are authorised to be seized by law, and thereout to 'cause to be made' (namely to sell) so much of the same as may be sufficient to satisfy the amount of the judgment debt and the costs of execution, and also interest on the amount of the judgment from its date until payment."

57. So far as I am aware, no one outside of Hong Kong has ever suggested that the writ of fi fa has any role to play in the seizing of a debtor's person. Other writs, like capias ad satisfaciendum, are used for that purpose.

58. It is urged on behalf of the judgment creditors and the Commissioner of Correctional Services that Hong Kong's Rules of the Supreme Court have created a special type of writ of fi fa which not only serves the purpose of enabling the bailiff to seize the judgment debtor's goods so that they can be sold, but also empowers him to arrest the judgment debtor in order to cast him into prison.

59. If the writ of fi fa Hong Kong-style really is of this rolled-up variety which encompasses both seizure of goods and of the person, then no leave of a Judge is necessary for it to issue. However, if, as elsewhere in the common law world, the writ of fi fa in Hong Kong is confined to the seizure of goods, then any writ in aid for the seizure of the judgment debtor's person will only issue with the leave of a Judge: Order 46 rule 3 and rule 6(4).

60. Semantically, there is, of course, no reason why the writ of fi fa in Hong Kong should not have the peculiar meaning now being urged by those who resist the present applications for habeas corpus. For the Rules Committee to give a well known term of art from English law a peculiar meaning would seem more than a little eccentric, though.

61. Whenever it is urged upon a Judge that he should adopt a strained meaning for words so that a citizen kcan be deprived of his liberty, the Judge might well do worse than ponder upon a famous passage from Lord Atkin's judgment in Liversidge v. Sir John Anderson ⁽²⁾ at page 245:

"I know of only one authority which might Justify the suggested method of construction: "'When I use a word' Humpty Dumpty said in rather a scornful tone, 'it means just' what I choose it to mean, neither more nor less.' 'The question is,' said Alice, 'whether you can make words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be master - that's all."?("Through the Looking Glass," 'C. vi.)"

62. How the writ of fi fa in Hong Kong is supposed to acquire the unique characteristics urged for it is as follows:

63. Order 45 rule 12(l) says in effect that a writ of fi fa must be in Form No. 53 in Appendix A to the Rules.

64. When one looks at Appendix A, one finds the following:

"No. 53

Writ of fieri facias

(O.45 r.12)

(Heading as in action)

ELIZABETH THE SECOND, by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of Our other realms and territories Queen, Head of the Commonwealth, Defender of the Faith.

To the bailiff .................... greeting:

Whereas in the above named action it was on the ...day of ............... 19... adjudged (or ordered) that the defendant C.D. do pay the bailiff A.B. $............ (and $.......... costs or costs to be taxed, which costs have been taxed and allowed at $.......... as appears by the certificate of the taxing officer dated the ....... day of ........... 19.....):

We command you that of the goods, chattels and other property of C. D. authorized by law to be seized in execution you cause to be made the sums of $.......... and $............ for costs of execution and also interest on $.......... at the rate of $4 per cent per annum from the ..... day of .............. 19... until payment (together with bailiff's fees, costs of levying and all other legal, incidental expenses) and that immediately after execution of this writ you pay A.B. in pursuance of the said judgment (or order) the amount levied in respect of the said sums and interest.

[And we further command you that, in case you shall not be able to find sufficient property of the said defendant, or the said defendant shall fail to point out to you any property whereon to levy, you do forthwith arrest the said defendant and deliver him into the custody of the Commissioner of Prisons to be kept in a prison as a prisoner for debt for the period of ........... .. unless he shall be sooner discharged from the said imprisonment in due course of law.]

And we also command you that you indorse on this writ immediately after execution thereof a statement of the manner in which you have executed it and send a copy of the statement to A.B.

And the court has fixed support and maintenance allowance at the rate of ............ a day.

Witness .................. Chief Justice of Hong Kong, the ...... day of ............... 19....

This writ was issued by ........... of ..... solicitor for .................. the ... (or this writ was issued by A.B. (the plaintiff) in person who resides at .........................).

N.B.	The words in square brackets are only to be included on the express instructions of the party applying for the writ of fieri facias to issuer."

65. However, the question is left completely open as to when the party applying for the writ of fi fa is entitled to instruct that the words in square brackets are to be included. By virtue of Order 1 rule 9, the form is to "be used where applicable with such variations as the particular case requires?

66. On the view I take, form 53 with the words in square brackets included is only applicable where a Judge has ordered the imprisonment of the judgment debtor.

67. The form itself presupposes that there must have been a Judge's order if the judgment debtor is to be imprisoned. Where it says "And the court has fixed support and maintenance allowance at the rate of ....... a day", it echoes the very words of Order 49B, rule 2. How the wording of a form can supply intrinsic assistance for the purpose of interpreting the law underlying it is shown in In re Norman. Ex parte Board of Trade. ⁽³⁾

68. Rather than give some strained and unnatural meaning to the term of art "writ of fi fall, as urged upon me by Mr.Chan and Mr. Osbourne, I prefer its conventional meaning, particularly when that conventional meaning works in favour of the liberty of the subject.

69. I think, with respect, that Mr. Litton was prepared to concede more than he needed to in agreeing that "writ of fi fa", as used in the Rules of the Supreme Court might be ambiguous in its meaning. I see no ambiguity there. To me, it simply means a writ for the seizure and sale of property. Because Hong Kong retains imprisonment for debt, the writ of fi fa can be used in a rolled-up form so as to incorporate a direction to the bailiff to arrest and imprison the judgment debtor provided a Judge has first of all sanctioned such imprisonment.

70. The term "writ of fi fa?has been used elsewhere in Hong Kong legislation. It was used in rule 64 of the 1968 Matrimonial Causes Rules (now repealed) and is now to be found in rule 86 of the Matrimonial Causes Rules which replaced them. It was not suggested in Turner v. Turner⁽⁴⁾ that "writ of fi fa?in the Matrimonial Causes Rules 1968 meant something different from writ of fi fa under the Rules of the Supreme Court. Huggins, J. (as he then was) had this to say:

"However, rule 64 of the Matrimonial cuses Rules 1968 further provides that an order for payment of money in a matrimonial cause must be enforced by writ of fi fa or sequestration and no provision is made for enforcement by imprisonment".

71. He obviously thought there was no power to imprison a judgment debtor under a writ of fi fa Hong Kong-style, the power to imprison being derived from Order 49B of the Rules of the Supreme Court.

72. It must be added, too, that he thought an order of committal made under Order 49B did not in fact require an order, so that Turner v. Turner ⁽⁴⁾ is authority both for and against the judgment debtors.

History

73. I see no justification to go off on an excursion into the thickets of legal history in the present case.

74. When looked at carefully, the present Rules of the Supreme Court show unambiguously, in my view, the law to be that judgment debtors are only to be imprisoned after a Judge has made an order to that effect.

75. The intention of the Rules Committee is to be gathered from the words of the Rules themselves. So long as the Rules are clear - as I find they are in this present instance - there is no justification for embarking on an exercise of scouring old legislation to find out what the Rules Committee probably would have intended if they had thought about a particular matter. I do not regard that as a legitimate technique of interpretation, particularly when the liberty of the subject is involved.

76. As it was, the history brought to our attention was quite inconclusive, in my opinion. It did not even show that the practice under the law before the Rules of the Supreme Court were promulgated in 1967 was any better founded than it is now.

Long.Usage

77. True, no one remembers a time when the bailiff in Hong Kong has not hauled judgment debtors off to gaol without the order of a Judge. However, he has only been doing so under thepresent law since 1967 when the Rules of the Supreme Court came into effect.

78. Just because everyone till now has assumed that the 1967 Rules could be interpreted to mean that the bailiff could act in that way is of no consequence in the eyes of the law, particularly as the liberty of the subject is involved. An interpretation going back merely to 1967 is comparatively short-lived by legal standards. Much longer usage than that would be required for it to have any significance.

79. This is what Craies on Statute Law, 6th Edition at page 150, has to say on the topic:

"Construction Long Acquiesced In.

Light may be thrown upon the meaning of an obscure enactment by taking into consideration the construction which for a long period of time has been put upon it."

The foot-note to that passage then reads:

'That is to say, 'one or two centuries,?as Lord Watson said in Clyde Navigation Trustees v. Laird (1883) 8 App. Cas. 658, 673, on this subject."

80. In any event, practice can only be an aid to interpretation in the case of legislation which is obscure, and for reasons I have already indicated, I do not regard the Rules of the Supreme Court as obscure for the purpose now under consideration.

81. Naturally, the decision in the Producers Finance and Investment Ltd. case prompts the question "Is it likely that those gaoling judgment debtors under the Rules of the Supreme Court have all been wrong in their interpretation of the law for all these years, and that the lone voice in the wilderness of this newly arrived Judge from England could be right?"

82. Before answering that question, it is pertinent to bear in mind that whereas judgment creditors normally are represented by lawyers, judgments debtors usually are not, because of lack of the necessary wherewithal. The present case is one of those rare exceptions where judgment debtors were legally represented, and that is by courtesy of the Official Solicitor.

83. Because of lack of legal representation, points of law in favour of judgment debtors simply go by default in most cases.

84. With the legal talent normally being confined to the judgment creditor's side, it need not necessarily be any great cause for surprise that a practice contravening the legal rights of judgment debtors could have developed and persisted in Hong Kong.

85. How Hong Kong is a place where invalid practices affecting liberty can easily start to take root was demonstrated by the recent case of Supreme Finance Ltd. v. Wan Hung Trading Ltd. & Ors. ⁽⁵⁾ There, Mr. Martin Lee, Q.C., sitting as a Commissioner, refused to allow the continuance of a practice which was growing up of judgment creditors causing the names of judgment debtors to be entered on the Director of Immigration's "Stop-List".

86. To answer the question I posed a few moments ago: Yes, I do think Mr. Justice Mantell was right, and all the rest of us, myself included, have been wrong in assuming hitherto that the bailiff's practice was valid.

87. As with the firs bold spirit who made himself unpopular by pointing out the world was round when everyone else knew it to be flat, or the boy in the fairy tale who dared to say the king had no clothes, there always has to be someone who takes the initiative in exploding a myth.

88. Here the myth has been that in Hong Kong you can gaol people without the order of a Judge.

89. I regard it as axiomatic that practice must conform with the law, and not the other way round.

The Detention Is Invalid

90. Imprisoning a judgment debtor without the order of a Judge is, in my opinion, such a fundamental breach of the Rules of the Supreme Court as to be incurable.

91. It would be convenient in some ways if the defect in relation to judgment debtors imprisoned to date could be cured, as it seems rather harsh on judgment creditors, the Commissioner of Correctional Services and others concerned with the gaoling of judgment debtors in such circumstances to have to face the consequences of` being responsible for wrongful imprisonment, when all they have been doing is following established practice.

92. At first, I thought a way out of the predicament might lie in Order 2 rule 1 which relates to irregularities:

"Order 2

Effect of Non-Compliance

Non-compliance with Rules

1(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connexion with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect; the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

(2) Subject to paragraph (3), the Court may, on the ground that there has been such failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with theproceedings generally as it thinks fit.

(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed."

93. If that Order had applied, the writs under which the judgment debtors are detained could have been set aside on terms that the judgment debtors were not to bring any actions for wrongful imprisonment.

94. However, I incline to the view that to imprison someone without the order of a Judge goes beyond mere irregularity, and is a failure so serious as to render null and void the writ which purports to confer authority to do this.

95. Since being unlawfully imprisoned, one of the 30 prisoners has applied unsuccessfully under Order 49B rule 6 to a Judge to be released. I do not think that renders his continued imprisonment under a writ of fi fa any the more lawful.

Ultra Vires

96. At first, Mr. Litton contended that the whole principle of imprisonment for debt under the Rules of the Supreme Court was ultra wires.

97. Those who fear that the heavens will fall down if ever imprisonment for debt is abolished in Hong Kong will be relieved to know that he abandoned that drastic line of attack on established thinking, and confined himself to asserting that imprisonment of judgment debtors was only unlawful if not preceded by the order of a Judge. Mr. Litton was clearly correct to abandon the ultra vires point: it was quickly demonstrated to be simply unarguable.

98. Thus, the sanction of imprisonment for judgment debtors remains safely unimpaired.

99. The only change that Mr. Justice Mantell's and my view of the law would dictate in relation to existing practice is that only the judgment debtors who really need to go to prison would finish up there.

100. At the moment, those who finish up as prisoners for debt are for the most part the honest and the ignorant.

101. The dishonest debtor will generally have gone to ground long before the bailiff comes around knocking on his door. Any debtor who is sued in Hong Kong knows that almost as sure as the sparks fly upwards, the bailiff will come seeking him in due course. The dishonest debtor accordingly takes the precaution of disappearing once the time for entering judgment has come.

102. The honest debtor stays put to accept whatever consequences must befall him. If he is knowledgeable, he will be aware that he can make a pre-emptive visit to the Court under Order 13 rule 8 or Order 47 rule l in the hope of forestalling imprisonment.

103. It is the ignorant yet honest debtor who under existing practices is the one mainly at risk of unnecessary imprisonment. He goes to prison first, and then has to wait to see a Judge to entertain his application to let him out under Order 49B rule 6. Sometimes the wait is long - a matter of weeks.

104. On my view of the law, the Judges already have the power to filter out which judgment debtors need prison and which do not, but no one should be sent to prison without the order of a Judge.

Conclusion

105. In view of the foregoing, I would direct that each of the 30 prisoners for debt, in respect of whom these habeas corpus proceedings have been brought, is to go free.

Kempster, J.:

106. The first well-known instance of judicial criticism of the Hong Kong procedure for imprisoning debtors is that of Blair-Kerr, J. in Leung Iai-sheung v. Sam Ying Co. & Or. ⁽¹⁾ The relevant rules were then comprised in the Code of Civil Procedure and allowed the arrest of a debtor without any order from a judge if insufficient property was found upon which execution could be levied. Order 17 rule 30 and the writ of execution found in related Form 39. Thereafter, until this year, the procedure appears to have remained unquestioned and was, indeed, confirmed by a direction of Huggins J., as he then was, in Turner v.Turner.⁽²⁾ In the meanwhile, in 1967, the Code of Civil Procedure had given way to the Rules of the Supreme Court.

107. The procedure was touched upon by Deputy High Court Judge Lee in Supreme Finance Ltd. v. Wan Hang Trading Ltd. & Or. unreported (1983 No. 11877) and more recently has been the subject of three judgments delivered by Mantell, J. between the 4th and 17th November. Lee Yip Tang and Lee Shing v. Miss Lee Yu Ying; Onprofits Co. Ltd. v. Tang Tjin Kik and Producers Finance and Investment Ltd. v. Tse Yee Wan & Ors. all as yet unreported (1983 Nos. 6832, 3145 and 9637). In the last of these judgments Mantell, J. held that since 1967 no imprisonment of a judgment debtor has been lawful unless ordered by a judge; a conclusion based on the introduction by the New Rules of the Supreme Court of Order 45 rule 1(1) which provides that a judgment for the payment of money may be enforced by one or more of the means set out including ?g) an order of committal made under Order 49B". A fortiori "an order" includes leave and only a judge can deal with matters relating to the liberty of the subject. Order 32 rule 11(g). For reasons which I shall seek to explain I have no hesitation in agreeing with the learned judge that a debtor cannot be imprisoned under Order 49B without an order of committal made by a judge. The question remains whether or not this requirement is of more comprehensive application.

108. Oddly enough when one turns to Order 49B one finds no such provision as appears in Order 46 rule 5(l) whereby the Court may be invited to make an order or even to grant leave save, possibly, by implication having regard to the terms of rule 2. The order is principally concerned with the means whereby a judgment debtor, having in some unspecified manner been imprisoned, may obtain his discharge or be removed to hospital if unwell and also with the length of his imprisonment and his maintenance meanwhile. But on the assumption that application for an order may be made to a judge by motion or, possibly, summons as occurred on the 26th November last ex-parte in chambers, and that he has no discretion, the obiter pronouncement of Cons, J. A. in Shyam v. Days International Ltd. ⁽³⁾ at page 538 that "imprisonment of the defendant (is) a right expressly given to (a judgment creditor) by Order 49B - or he may put the defendant in prison under Order 49B" is true.

109. It has been contended that the form and content of Order 49B reflece an intention that it should be no more than declaratory of the remedies available to a creditor and, ancillary matters apart, mandatory to define the means whereby an imprisoned debtor may seek release. While it is true that by ignoring or doing violence to the language of Order 45 rule 1(1)(g) the various rules relating to execution by imprisonment can be made to achieve a desirable degree of coherence I am unable to ignore the words "an order of committal made under order 49B" or to construe them as meaning anything but an order of a judge by analogy, for example, with the terms of Order 52 rule 1(1).

110. If the judgment debtor has not sought to forestall execution, by making an application for a stay pursuant to Order 47 rule l, what happens in practice is that the judgment creditor applies to the Registry for a writ of "fieri facias" pursuant to Order 45 rule 1(1)(a) and Order 46 rule 6. The writ then issued and sealed normally follows such of the forms numbered 53, 54 or 56 in Appendix A as may be appropriate pursuant to Order 45 rule 12(1). Examining these forms one finds, in parenthesis, the words:

"and we further command you that, in case you shall not be able to find sufficient property of the said defendant, or the said defendant shall fail to point to you any property whereon to levy, you do forthwith arrest the said defendant and deliver him into the custody of the Commissioner of Prisons to be kept in a prison as a prisoner for debt for a period of ...... unless he shall be sooner discharged from the said imprisonment in due course of law." The form continues: " - And the Court has fixed support and maintenance allowance at the rate of .......... a day."

111. "Court" was not defined in the rules as they appeared in 1967 but is now widely defined by Order 1 rule 4(2). Subject to such parameters it is to be construed in its context. In my view it here includes the Registrar who seals the writ. "You", for those purposes, means the bailiff.

112. At the foot of the form appears the following intimation to the Registry:

"The words in square brackets are only to be included on the express instructions of the party applying for the writ of fieri facias to issue."

When, following express instructions, a clerk in the Registry has sealed and issued a writ of "fieri facias" in Form 53, including the wrods in brackets, it is left to the discretion of the bailiff whether or not to take the debtor into custody for a period of uncertain duration not exceeding 12, 6 or 3 months, as the case may be, depending on the amount of the debt. Order 49B rule 1(2).

113. Rather belatedly I turn to the genesis of the proceedings with which the Full Court is seized. Following his decision on the 17th November Mr. Justice Mantell gave a direction which read:

"Upon further reference by the Registrar,

I direct that my decision herein be brought to the attention of the Registrar General in his capacity as Official Solicitor so that he may institute such proceedings or take such further steps as he deems appropriate on behalf of any judgment debtors at present imprisoned under Order 49B procedures."

The Registrar General, in such capacity, made enquiries in Hong Kong's equivalents of the Marshalsea and on Friday the 18th November, having sworn an affidavit, applied ex-party to O'Connor, J. for a writ of Habeas corpus on behalf of persons then thought to be in prison for debt in circumstances where no relevant order had been made by a judge. Pursuant to Order 54 rule 2(1)(a) O'Connor, J. directed that an originating motion should issue directed to the debtors themselves; to the related creditors and to the Commissioner of Correctional Services. He did not abridge time under Rule 2(2). The hearing was fixed for Friday the 25th November. We then abridged time pursuant either to Rule 2(2) or to Order 3 rule 5(1) to allow applications to be made forthwith in relation to debtors admittedly detained pursuant only to writs of "fieri facias" and, in relation to those with regard to whom applications to be mad eon Monday the 28th.

114. Attention was drawn to the terms of and to a defect in the form of paragraph 2 of the Official Solictor's supporting affidavit. Quite apart from the absence of sources of information he seemed uncertain whether the debtors listed in the exhibits to his affidavit had been detained pursuant to Order 49B or to writs of "fieri facias"; presuming there is a real distinction. Mr. Litton, who appeared for the Official Solicitor, promised to and in due course did file further evidence to make good the lacunae. There remain 30 debtors detained without the initial order of a judge on whose behalf the issue of writs of Habeas corpus is sought. One has made a number of unsuccessful applications under Order 49B rule 6. These, in my view, did not render his relevant detention lawful if unlawful ab initio. The refusal to order a release cannot be equated with an order to detain and an invalid writ ordering detention cannot be validated by waiver. This debtor is held by the Commissioner of Correctional Services pursuant to a writ of "fieri facias". Had the invalidity only amounted to an irregularity, which, as will appear, I do not accept, my conclusion might have been different.

115. I make two observations about the nature of the applications before us. The first is that Habeas corpus does not provide a remedy by way of appeal from a judicial decision by a court of competent jurisdiction. The second observation is that no member of the executive; such as the Commissioner, can detain a British subject except on the condition that he can support the legality of his action before a Court of Justice. It is for him, whether or not aided as here by counsel for creditors, to satisfy the court, on the balance of probabilities, accordingly.

116. As personal liberty is involved the degree of probability required is high. R. v. Governor of Brixton Prison; ⁽⁴⁾ Khawaja v. Secretary of State for the Home Department. ⁽⁵⁾

117. The nub of the argument with which the Full Bench is presently confronted is whether or not sub-rule (a) of Order 45 rule 1 (1) provides a lawful means of imprisoning a judgment debtor independent of that provided by sub-rule (g) or even (e). In other words "is the procedure for imprisonment which has continued for very many years substantially without challenge under what is called a writ of fieri facias lawful or is it governed by "(g) an order of committal made under Order 49B"? In Producers Finance and Investment Ltd. v. Tse Yee Wan & Ors. Mantell, J. held that it was. Were the marginal note to Order 49B referring to Form 53 to be a permissible aid to construction his opinion would be reinforced. It is not permissible. Interpretation and General Clauses Ordinance Cap. 1 section 18(3); Order 1 rule 3.

118. I have used the words "what is called a writ of fieri facias" advisedly. Form 53, inclusive of the words in square brackets, like the former Form 39 is hybrid and my Lord Liu, J. has compared it with the old Long Writ. Prior to 1967 it was formally unknown in Hong Kong and, shortly after a writ so described was introduced, it was defined by reference to the forms to which I have already referred. Originally, on the 1st September 1967, it was a true form of fieri facias. On the 30th of that month, however, it was amended to follow the form so familiar in the territory. The square brackets and the nota bene were not introduced until the 20th February 1976.

119. "Fieri Facias" as referred to in, say, Orders 45, 46(1) and 47 has a different meaning and connotation to that which obtains in England. The form most frequently used is 53 and it provided and provides, contingently, for the arrest and detention of the debtor. I cannot strain the cannons of construction to find that "fieri facias" should so be understood alto render rules 1(1) (a) and 12(1) of Order 45 repugnant. It cannot constitute both a writ of fieri facias and a writ in aid so as to require leave for issue within the meaning of Order 46 rule 3. No more, having regard to the limited terms of the authorised note at the foot of the form, am I able to find that the words in parenthesis cannot lawfully be included in the writ in the absence of a prior order by a judge pursuant to Order 49B. The note relates, in my view, to such considerations as appear in Order 47 rule 3(1). But if I am wrong and a prior order is required the adaptation of the form would be warranted by Order l rule 9.

120. In this context, thanks to the researches of Mr. Osborne, who appeared for the commissioner of Correctional Services, I feel able to rely upon the constant course of practice employed in Hong Kong virtually since 1884 as an aid to construction as well as to 3 cogont indications pointed out by Mr. Warren Chan, who appeared for a number of judgment creditors, that Form 53, inclusive of the words in square brackets, is to be regarded here as the writ of fieri facias. These 3 indications are its heading, the reference to Order 45 rule 12 and the terms of the nota bone. Rules made in the exercise of a statutory power, including a prescribed form, cannot be used as an aid to the construction of a statute. Jackson v. Hall. ⁽⁶⁾ However, in my veiw a prescribed form may be used to construe a rule of equivalent authority.

121. Subject to the validity of the material rules I find that a debtor may lawfully be detained either by order of a judge at the conclusion of the hearing pursuant to order 45 rule 14 or subsequently pursuant to Order 49B. Such orders do not require the issue of a writ as defined in Order 46 rule 1. Critically for present purposes I find that a debtor may also, without the safeguards of an application in open Court or to a judge, be detained pursuant to Order 45 rule 1(1) (a) and to the command directed to the bailiff in a duly sealed and issued writ which includes the words in parenthesis following Form 53. It is to be inferred from the terms of Order 46 rules 2 or 3 that such issue does not even require leave. Each procedure, as Order 45 rule 1(1) clearly states, is separate and distinct though Order 49B rule 1(1) may be regarded as declaratory of the general power of the court. For my part I am quite unable to infer that the initial changes made in 1967 reflected any intention of ameliorating the lot of debtors. After a hiccough in relation to the form of the writ of "fieri facts" the proceeding rules were substantially reproduced and the practice of the previous 123 years continued.

122. It is also contended on behalf of the judgment creditors in the alternative that the issue of a warrant of fieri facias including the words in parenthesis, in the absence of a prior order by a judge, is no more than an irregularity within the meaning of Order 2 rule 1(1) and therefore not a nullity but liable to be set aside on application pursuant to the provisions of Order 2. But where in a statute or rule general words follow particular and specific words the general rules are to be construed as covering only matters similar to those particu-larised. This is the eiusdem generis rule. Brownsea Haven Properties Ltd. v. Poole Corporation ⁽⁷⁾ at page 598 per Lord Evershed M. R. I regard the absence of an order of a judge as wholly different in nature from the matters particularised in Order 2. It would not be a mere irregularity. In any event a court faced with an application for Habeas corpus cannot be in a weaker position than one faced with an application to set aside an order for irregularity.

123. As to the validity and vires of the relevant rules Mr. Litton has not pressed his argument which was never put on a basis higher than that of doubt. Section 54(2)(h) of the Supreme Court Ordinance reads:

"- rules of court may be made for the following purposes:-

(h) regulating the execution of the process of the Supreme Court".

124. The Supreme Court has power to imprison debtors by reason of the application of common law pursuant to section 3 of the Application of English Law Ordinance cap. 88. It also has jurisdiction in that the Code of Civil Procedure had previously so provided by rule. Section 54(2)(i) of the Supreme Court Ordinance provides that rules may also be made:-

"(i)	regulating matters which could heretofore be or which have heretofore been provided for or regulated by rules of court".

In my opinion, the relevant Rules of the Supreme Court are intra vires.

125. In the event the judgment creditors and the commissioner have satisfied me as required that the detention of the 30 debtors with whom we remain concerned is lawful. I would dismiss the applications for writs of Habeas corpus accordingly.

126. I am only too conscious of the fact that our judgments, or one or more of them, may make confusion worse confounded insofar as the persuasive authority of Mantell, J. is not followed. These doubts can only finally be resolved by the Court of Appeal though legislation, perhaps reflecting a view that the procedure under Order 45 rule 1(1)(a) has for many years constituted an anachronism, may well alter and clarify the position for the future.

(1) Cmnd. 8878, p.126 et seq.

(2) Cmnd. 3909, p.246 et seq.

(3) Final Report of the Committee on Supreme Court Practice & Procedure, p.126.

(4) Chitty and Jacob's Queen's Bench Forms 20th edition p.859.

(5) Mather on Sheriff and Execution Law, 3rd edition p.229.

(6) Para. 398 9 at p.1176, Volume 2, 1982 White Book.

(9) Jowitt, The Dictionary of English Law, p.307.

(10) See Form 859 at p.p. 859 and 860 of Chitty and Jacob's Queen's Bench Forms, 20th ed.

(11) 2 B. & Ald. 56 at p.64.

(12) Mather on Sheriff and Execution Law, 3rd edition, p.195.

(13) Mather on Sheriff and Execution Law, 3rd edition, p. 197.

(14) See s.21 thereof.

(15) See s.4 thereof.

(17) See also Sir Allison Russell's Legislative Drafting & Forms, 4th ed.,p.540

(18) [1977] H.K.L.R. 371 at p.373

(19) See 45/1/5 p.748 Vol.1 1982 White Book.

(21) Turner v. Turner [1970] H.K.L.R. 323.

(22) See 44 Halsbury's Laws of England, 4th ed., para. 880.

(23) See 45/1/2 Volume 1, 1982 White Book.

(24) See Craies on Statute Law 7th ed. p.150 and p.153.

(25) See 45/1/2 Volume 1, 1982 White Book.

(26) See 45/1/5 Volume 1, 1982 White Book.

(1) (1983) H.C.A. 9637

(2) (1942) A.C. 206

(3) (1893) 2 Q.B. 369

(4) (1970) H.K.L.R.

(5) (1983) H.C.A. 11877

(1) (1964) H.KI.L.R. 752.

(2) (1970) H.K.L.R. 323.

(3) (1982) H.K.L.R. 534

(4) (1969) 2 Q.B. 222

(5) (1983) W W.L.R. 321

(6) (1980) A.C. 854

(7) (158) Ch. 574

Representation:

Mr. Henry Litton, Q.C. with Mr. Lester Kwok on instructions of the Official Solicitor for the Judgment Debtors named in Exh. NG-1 to affidavit of N. M. Gleeson sworn on 18.11.83.

Mr. Ho Kwan You t/s Wah Kee Lan, judgment creditor in H.C.A. 8703/82, in person

Mr. Adrian Huggins instructed by J.S.M. for judgment creditor in H.C.A. 9979/83

Mr. Clayton / Mr. R. Kotewall instructed by Messrs. Deacons for judgment creditors in H.C.A. 8131/83, 9578/83, 1023/83, 5387/83, 10518/82, 870/83, 10462/83, 8566/83.

Mr. Warren Chan instructed by Tsang, Chan & Co. for judgment creditor in H.C.A. 650/83.

Mr. Warren Chan instructed by P.H. Sin & Co. for judgment creditor in H.C.A. 8694/83

Mr. Warren Chan instructed by P.H. Sin & Co. for judgment creditor in H.C.A. 128/83

Mr. Warren Chan instructed by Chan & Lo for judgment creditor in H.C.A. 9947/82

Mr. Warren Chan instructed by Gallant Y.T. Ho & Co. for judgment creditor in H.C.A. 736/783

Mr. Warren Chan instucted. by Y.T. Chan & Co. for judgment creditor in H.C.A. 11690/82

Mr. Warren Chan instructed by Tsoi & Co. for judgment creditor in H.C.A. 7035/83

Mr. Warren Chan instructed by F. Zimmern & Co. for judgment creditor in H.C.A. 844/81

Mr. Warren Chan instructed by P.K.H. Wong for judgment creditor in H.C.A. 7479/83

Mr. Warren Chan instructed by P.K.H. Wong & Co. for judgment creditor in H.C.A. 7480/83

Mr. Warren Chan instructed by Messrs. Cheung, Tong & Rosa for Cheung, Tong & Rosa.

Mr. R. A. Osborne, Crown Solicitor for the Commissioner of Correctional Services.