Re Philip Yu Kin Chun

HCMP002267/1986

1986, No. M.P.2267

IN THE HIGH COURT OF JUSTICE

HONG KONG

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Coram: Hon. Liu J. in Court

Date of hearing: 24 October 1986

Date of delivery of judgment: 24 October 1986

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JUDGMENT

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1. Pursuant to the direction of O'Connor, J. given on the 20th October 1986, the instant originating summons was issued and duly served on those instructing Miss Yuen acting for the judgment creditor, the Master as well as the Commissioner of the Correctional Services Department. Time was abridged for the originating summons to return before me today, the 24th October.

2. Miss Yuen, counsel for the judgment creditor sought to take preliminary point. The proposal was resisted by Mr. Yu, counsel for the judgment debtor, the applicant, but I acceded to the request of Miss Yuen.

3. On behalf of the judgment creditor, arguments advanced may be summarized as follows : First, it is submitted that the Habeas Corpus Act 1679 and that of 1816, as they apply to this territory, expressly curtail the High Court's jurisdiction to issue a writ of habeas corpus in respect to imprisonment for debt. Both Miss Yuen and Mr. Yu voice, time and again, their predicament as the result of haste with which the summons is brought before this Court. Therefore, counsel are unable to assure me that these Acts have been exhaustively debated. I am relieved to say that on the conclusion I have arrived at in the alternative limb canvassed by Miss Yuen, counsel for the judgment creditor, I need express no concluded view on the true interpretation and effect of these two Acts of 1679 and 1816 as regards imprisonment for debt.

4. As I have said, the basis of Miss Yuen's argument is threefold. First, it is submitted that this court has no jurisdiction to entertain the applicant's originating summons by virtue of section 7 of the 1679 Act and section 1 of the 1816 Act. Further, it is contended that the court is vested with a discretion, in proper circumstances, as to whether an application for a writ of habeas corpus should be entertained. Thirdly, in all the circumstances, such judicial discretion ought not to be exercised in favour of the judgment debtor who is now in prison.

5. It is well said that an application for a writ of habeas corpus "may be refused where another remedy lies whereby the validity of the restraint can be effectively questioned". 54/1/1, p. 771 White Book Vol. 1, 1985. While conceding that it would be open to his client to appeal to the Court of Appeal, counsel for the applicant invites me to seize upon this application for a writ of habeas corpus on account of the matters to which my attention has been directed.

6. Let me turn to the complaints raised on behalf of the judgment debtor. He was ordered to produce documents by another Master and had failed to do so. He did not attend several sittings before the Master who had the judgment debtor incacerated under an order made on the 20th October, for a period of a month invoking 0.49B, r.1B(1)(c) of the Rules of Supreme Court.

7. It is strenuously argued on behalf of the judgment debtor that all he had failed to comply with is an order of another Master to produce documents under 0.49B, r.1(1)(a) but that his obligation as a judgment creditor at his examination, to make a full disclosure of inter alia all his assets, liability, income and expenditure and dispositions and to answer questions asked of him subject to the direction of the Court was under 0.49B, r.1A(2). There is no power to imprison under 0.49, r.1(1)(a) except for contempt. As the learned Master had decided to, so ran counsel's argument, send the applicant to prison solely for his failure to disclose documents in a purported exercise of his power of imprisonment for a wilful non-disclosure of assets etc. under an entirely different rule, the imprisonment lacks legal justification and is manifestly unlawful. Counsel urges me to hear the applicant's application for a swift remedy in what is claimed to be an uninvolved situation.

8. 0.49B, r.1B(1)(c) R.S.C. enables the Master to order the imprisonment of a judgment debtor for a period not exceeding three months, if he should wilfully fail to make a full disclosure of his assets etc. at his examination. The notes taken of the proceedings record the learned Master as having pronounced the following at the conclusion of the hearing :

"Mr. Yu, you have wilfully defaulted in disclosing the documents and had not complied with the order made by Master O'Donnell and I think Order of Imprisonment is appropriate. I imprison you for one month from today. ” (The emphasis is mine).

9. The learned Master was in the course of making an inquery into the applicant's assets and his capability to pay. That written records are a source of information was constantly driven home, if not obvious, to the applicant. What was sought to be investigated was his "business transaction", "transfer (of shares) in Chiu Wah Fashion Ltd.", "property in Vancouver", "interest in a company" and "car". He was categorically asked by the learned Master how much his brother was able and willing to come to his rescue in the repayment of his debts.

10. It seems reasonably clear that the learned Master based his decision on two separate grounds. First, his failure to disclose written information of his financial capability as envisaged by 0.49B, r.1A(2) "AND" secondly his non-compliance with the order made by another Master to produce documents. I must not even attempt to reach any concluded view on the matter. It must be acknowledged, of course, that the Master's pronouncement in the recorded notes of proceedings is not wholly incompatible with the interpretation suggested by Mr. Yu, counsel for the judgment debtor. After all, Mr. Yu has not even begun to elaborate on his intended arguments.

11. Mr. Yu maintains that whether or not the applicant deserved to be incarcerated is beside the point, as the real gravamen is that the learned Master had arguably not followed the Rules of Supreme Court in as crucial a matter as personal liberty.

12. It is further submitted on behalf of the judgment debtor that the order of imprisonment was not pronounced in open court. Counsel complains of the lack of public advance warning on account of the listing of the hearing before the learned Master as a Chambers matter or otherwise the absence of any adequate public notification that an open court hearing would be or was, in the course of those proceedings, conducted. But in essence, the objection seems to be wholly founded on the geographical location of the Master's chambers and a sign or two which happened to be up or exhibited at the entrance to or along the passage-ways leading to the Master's chambers.

13. Converting Chambers business into an open court hearing in the manner as the learned Master did it these proceedings has been, for a great many years, a common practice in these courts, of which I can safely take judicial notice. That routine has become habitual and is generally accepted. This judicial habit to which Mr. Yu will seek to attach an unwelcome consequence in these surrounding circumstances is a point of considerable public interest and importance. It ought to be determined by a court which enjoys the eminence which I do not pretend to possess.

14. Thus, the first point is a point, at best highly arguable and the second is one of considerable public importance. Not only is the alternative statutory remedy wide open to the applicant, but these are proper matters to be decided by the Court of Appeal. Moreover, from a practical point of view, this court is told by Miss Yuen, counsel for the judgment creditor that the applicant would introduce a further affidavit to which a reply is necessary in addition to her usual preparation. Counsel intimates that an adjournment would have to be sought and a further hearing would have to be fixed. Furthermore, whatever decision this court makes at an adjourned hearing, it is reviewable by the Court of Appeal. That would entail additional effort and expenses. It has been conceded by Mr. Yu, counsel for the judgment debtor that all these controversies, including "lack of legal justification" for the order made by the learned Master as an alleged jurisdictional error, could all be conveniently brought before, adjudicated by and determined in the Court of Appeal. I can find no valid ground for the parties to this application shouldering extra litigation time and its attendant legal costs.

15. In principle and reality, these are fit and proper matters for appeal. There is no warrant for allowing the learned Master's decision to be otherwise tested. For all these reasons, despite my misgivings as to the effect of the Habeas Corpus Acts 1679 and 1816, section 7 and section 1 respectively, in the exercise in my judicial discretion, I would decline to entertain the applicant's application, and in consequence he must invoke the statutory right of appeal if he so desires. The application is dismissed with costs to the judgment creditor.

Representation:

Mr. B. Yu and Mr. J. Lam instructed by M/S T.S. Tong for the Applicant

Miss M. Yuen instructed by M/S Fairbairn & Kwok for the Plaintiff in A. No. 3783/85