The Hongkong and Shanghai Banking Corporation v. Tsang Pui Shing

HCA012432/1983

Prohibition order - Provisions of Section 21B of the Supreme Court Ordinance do not preclude a second order being made.

BETWEEN:-

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Coram: The Honourable Mr. Justice Jones in Chambers.

Date of hearing: 7 November 1984

Date of delivery of decision: 7 November 1984

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DECISION

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1. This is an appeal against a decision of Master Boa made on the 22nd October 1984 when he refused the plaintiff's application to grant a second prohibition order against the defendant.

2. The defendant was formerly employed by the plaintiff in its Visa Card Center. A Visa Card was issued to the defendant by the plaintiff in April 1980 with a credit limit of $11,000.00. However, by the end of September 1983 the defendant had incurred a total liability to the plaintiff of $157,232.37. A writ was issued on the 7th October 1983 for recovery of this sum and judgment in default was obtained on the 14th November 1983. Efforts to levy execution were unsuccessful with the result that the judgment debt remains unpaid.

3. On the 22nd February 1984 Master Barnett made an order for the arrest of the defendant together with a prohibition order. The prohibition order was to lapse after one month unless extended or renewed. The prohibition order was extended for two further periods of one month on the 22nd March 1984 and the 19th April 1984.

4. The prohibition order was made under Section 21 B of the Supreme Court Ordinance which provides:-

Although Master Boa gave no reasons for his decision I assume he did so on the grounds that he had no jurisdiction after the period of three months had expired.

5. In an affirmation in support of the application a staff officer of the plaintiff said that numerous efforts to locate the defendant had been made since February 1984, but were all fruitless. However, the defendant telephoned the plaintiff in October 1984 enquiring whether a new prohibition order had been made. He also said that as he was about to start a new job which would require extensive travelling from time to time he would like to make arrangements to repay the debt due to the plaintiff.

6. Mr. Taylor who appeared for the plaintiff cited Sturges v. Countess of Warwick (1913) T.L.R. Vol. XXX 112 which held that the plaintiff was entitled to a further order under Order 42 rule 32 of the Rules of the Supreme Court 1883 for the examination of the defendant as to whether she had any means to satisfy judgments obtained against her.

7. The wording of Section 21B of the Ordinance does not state that a second order cannot be made. The legislation was passed to prohibit debtors who are evading their legal obligations from fleeing the jurisdiction. In fact if it was the intention of the legislature to restrict the period of prohibition to three months a wily debtor could cock a snook at his creditors by lying low during this time and then depart from Hong Kong with ease. This construction would clearly defeat the object of the legislation. This defendant has managed to evade arrest throughout the operation of the prohibition order. Accordingly it has not been possible for the Court to conduct an examination of the defendant under the provisions of Order 49B of the Rules of the Supreme Court.  In my opinion the Court is not precluded from making a second order where the circumstances are justified, but each case must necessarily depend on its own facts.

8. The evidence in this case supports the plaintiff's fears that the defendant is likely to leave Hong Kong without paying his debts unless he is restrained by a Court order. No question of hardship or prejudice can arise for the defendant may apply at any time for the order to be discharged.

9. As a result the appeal will be allowed. There will be an order prohibiting the defendant from leaving Hong Kong for a period of one month. No order as to costs.

Representation:

Mr. A.R. Taylor (Johnson, Stokes & Master) for Plaintiff.