Mineral & Gems Enterprises (HK) Co Ltd v. Yi Pak Lun

HCA002118A/1979

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Coram: Yang, J.

Date of Judgment: 2 April 1980

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JUDGMENT

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1. This is the judgment debtor's second application made under Ordinance 49B of the Rules of the Supreme Court to be discharged from prison.

2. His first application was heard and dismissed by Li, J. on 11th January this year on the ground that he had committed an act of bad faith. The learned judge also found that he had failed to make a full disclosure of his assets.

3. In support of the present application the judgment debtor has filed a very full affidavit setting out his assets and the background leading to the action brought by the plaintiff as against him.

4. I was asked to decide, as a preliminary issue, whether the matter is res judicata. In YAM Sau-ying v. YOUNG Ying-cheung⁽¹⁾, Judge Huggins (as he then was) said, at p.36:-

"If the inability to satisfy the judgment has at one time been due to unjustifiable extravagance in living nothing which may have happened thereafter can have erased that cause. Once that cause of inability to pay has been established it is res judicata and it is not open to the debtor to litigate the matter afresh upon a second application. Unless the decision upon the first application can be upset upon appeal by a competent court it seems to me that the debtor cannot of his own motion successfully seek a discharge."

5. Sitting in the Supreme Court in CHAI Oi-kwan v. Kader Industrial Co. Ltd.⁽²⁾, Huggins, J. (as he then was) confirmed the opinion he had expressed in the earlier case.

6. With the greatest respect, I agree with that opinion entirely. The finding of Li, J. being res judicata, the present application must be dismissed with costs.

Representation:

(1) (1964) HKDCLR 32

(2) Action No. 1975 of 1967 unreported