Crane Rental & Rigging (HK) Ltd v. Peter Nolt and Others

HCA000231/1981

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Coram: Liu, J. in Chambers.

Date of Judgment: 29th January, 1981

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DECISION

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1. An application was made under 0.44A for the issue of a warrant of arrest against a defendant for causes specified in r.1 thereof. Subsequent to the issuance of the warrant, the 1st defendant was arrested on his return from Singapore. He has intimated his desire for an imminent departure.

2. The 1st defendant elected to and did give evidence to the effect that he was quite unaware of the Plaintiff's proceedings against him under 0.44A and that although he intended to leave Hong Kong for employment in Singapore, he had no desire to evade, obstruct or delay execution of any judgment that may be given against him in the instant action. He fortified his avowed intention by a full disclosure of his financial affairs. He was subjected to very able cross-examination, brief but effective, of counsel for the plaintiff. For the purposes of these proceedings, suffice it for me to say that the 1st defendant has sufficiently shown, firstly, that he has harboured no intention to evade, obstruct or delay the execution of any judgment that may be given against him in the instant action and further that he is in fact impecunious.

3. The validity of the plaintiff's claim against the 1st defendant was never made a subject-matter for adjudication, and at this stage it should not be questioned that the plaintiff had a substantial claim against the 1st defendant.

4. Counsel for the plaintiff urged that once a warrant of arrest had been issued under 0.44A, it would be incumbent on the 1st defendant to show cause under r.2. It was strenuously submitted that the 1st defendant had failed so to do. The 1st defendant has experienced not inconsiderable difficulty. It is not for me to judge him morally. By the turn of recent events and by reason of the turmoil in his matrimonal relationship, he has been driven to the very extreme. He claimed to be virtually penniless, and I have no reason to disbelieve his testimony. He also impressed upon the court that he was on bail with I.C.A.C. and that he returned voluntarily to the Colony in ignorance of the proceedings by the plaintiff. He further maintained that with the old of a girl-friend, facilities were created to meet abligstions demanded of him in Hong Kong and that he managed to depart from the Colony for employment opportunities. He stressed that by reason of his ignorance of the present proceedings and his impacunious position, he had not the slightest intention or incentive to evade, obstruct or delay the execution of my judgment that might be given against him in the instant proceedings.

5. It was submitted by counsel for the plaintiff that execution of any judgment on the 1st defendant would not be limited to execution on his assets but would extend to a degree of restraint on his personal liberty. It is only common knowledge that an impecunious judgment debtor with no allegations of misconduct under the Bankruptcy Ordinance would unlikely be further restrained beyond 14 days. Liberty of anyone within jurisdiction must be given fair protection by the law of this lend. I would be reluctent to endorse any restraint on personal liberty for the sake of some fourteen days' detention to the prejudice of the employment prospects of the 1st defendant, who has sufficiently shown a lack of intention to evede, obstruct or delay the execution of any judgment that may be given against him in this action. For all these reasons, the warrant must be discharged and the 1st defendant be permitted to go about his lawful businesses in the Far East. The order that I propose to make is:

1. Warrant discharged.

2. Costs in the couse.

Representation:

Mr. Ribeire instructed by Messrs. Slaughter & May for Plaintiff.

Mr. Larry Ko of Massrs. Lo & Lo for 1st Defendant.