Lin Fung Trading Co v. Hanade Wafu Alias Hanabe

HCA001710/1977

Coram: Li, J. in Chambers

Date of Judgment: 6 July 1979

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JUDGMENT

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1. This is a summons taken out by Kazuo Hanade (hereinafter refer to as the applicant) applying for a variation and discharge of the Order I made on 14th July, 1977. The applicant first appeared before me in Chambers on an Order 44A summons. The plaintiff issued a writ against the applicant alleging breach of contract and breach of guarantee against the applicant. Having heard the applicant in person and counsel for the plaintiff I made an Order on 4th July, 1977 that the applicant should furnish bail in the sum of $1,495,418.70 so as to secure his attendance for the hearing of the action. I adjourned one week to enable him to raise the money. The applicant then took out a Summons to have the Order dated the 14th July, 1977 discharged and to strike out the plaintiff's claim. Affirmations were filed in support. In his affirmation the applicant deposed that he was willing to surrender his passport and undertake not to leave Hong Kong until the action had been heard. Having heard full arguments by counsel for both parties on the 14th July, 1979 I made the following Order viz.:-

"The Order dated the 5th July, 1977 be varied to the extent that bail should not be required on condition that defendant agrees to have his passport, already surrendered to the bailiff, remains in the bailiff's custody until after trial of this action or further order and that the defendant gives a personal undertaking not to leave Hong Kong until after trial of this action or further order."

2. Two years passed by since then. The case has not yet been set down for hearing. I have gone through the papers in the file and examined the various applications that had been made from time to time before registrars and judges in chambers. All I can say the delay was not due to any fault of either the plaintiff or that of the applicant. If one must be critical one may blame the whole delay on shortage of judges and registrars. I make this remark because in certain instances even though one party had filed and served an application or summons the applications could not be heard for a month or two afterwards. That is unfortunate. I am given to understand that even if this case were to be set down for hearing now it cannot be heard and will not be heard until long after October, 1980. It is on this basis that the applicant applies to me now to vary the Order.

3. Having heard learned counsel for both parties in this application and in view of the wordings in my Order dated the 14th July, 1977, I am satisfied, without repeating the detailed analysis in the various authorities cited to me, that I have jurisidiction originally to make the previous two Orders even if the applicant had been to Hong Kong in transit provided that the subject matter of the action took place in Hong Kong. In other words, if the applicant entered into an agreement in Hong Kong, committed a breach of that contract and later came to Hong Kong, I would have jurisdiction to entertain the plaintiff's Order 44A Summons and make the necessary Order. I am also satisfied that I have jurisdiction to review the Order not only as to the quantum of bail but as to all the terms of the Order even to the extent of discharging it. Thus, the only question for me is whether I should, in all fairness, vary the Order and lift the undertaking given by the applicant. As I have said the delay is due to no fault of either party. At the same time there is no hope of this case being heard before October, 1980. The plaintiff gave, at the time of applying for the Order under Order 44A, the reason that the breach of contract took place in 1971/1972. Since then the plaintiff had been trying to trace the applicant without any success at all. By chance the applicant was seen in the Colony in July, 1977. Hence that application. It was contended that in view of the circumstances had the applicant been allowed to leave Hong Kong he would never be traced again. The position has now changed. The applicant has surrendered his passport in the custody of the bailiff. A copy of his passport has been made and filed. In the passport are recorded not only his name, date of birth and address but also his family status, including members of his family. If the applicant were to be traced the same difficulty will not arise. The applicant has now been served with the Writ of Summons. If he chooses to absent himself from trial of the action trial can proceed in his absence. If the plaintiff succeeds in the action he can sue the applicant in Japan for the judgment debt which the plaintiff obtains in Hong Kong. If the applicant has assets in Japan the plaintiff will not be deprived of the fruit of the judgment. If the applicant has no assets in Japan then the sole purpose in keeping him in Hong Kong is to put him in debtor's prison for not being able to satisfy the judgment. In that event the applicant can easily obtain his release by applying under Order 49B. This is an unusual case. The applicant has been restricted within the Colony for the last two years waiting for the case to be heard. He now wants to leave with an undertaking that he will return when the action goes on trial. I doubt if his undertaking is practical. A court will never accept an undertaking unless the court can enforce it. If he undertakes to come back and he does not do so it will make the undertaking a mockery. However, the necessity to ensure the presence of the applicant is not as great as the time when the Order was made in 1977. On humanitarian grounds I will make an Order in terms of paragraphs 1 - 3 of this application. Now I will have to hear you on costs.

Representation:

Mr. M.H. Jackson-Lipkin, Q.C., and Mr. L. Fung (P.H. Sin & Co.,) for applicant/defendant

Mr. N. Pirie (Hampton, Winter & Glynn) for respondent/plaintiff