The Hong Kong and Shanghai Banking Corporation v. Therese Fung

HCA001871/1983

BETWEEN:-

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Coram: The Honourable Mr. Justice Penlington in Chambers

Date of hearing: 19th February 1985

Date of delivery of judgment: 19th February 1985

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JUDGMENT

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1. This was an application for an order prohibiting the judgment debtor from leaving Hong Kong, pursuant to Order 44A (2) and (3) of the Rules of the Supreme Court.

Background

2. The plaintiff obtained judgment against the defendant on the 17th of December 1983 for $3,125,590.49 plus interest on that sum at 6% above the plaintiff's best lending rate from the lst December 1982. The plaintiff had been unable to serve the writ as the defendant could not be found and an order was made for substituted service by the usual advertisements.

3. A prohibition order was made in April 1984 on the basis that the defendant was thought to be in Hong Kong and was likely to go to Macau where she had business interests. It was extended to 6th May, and then to 6th July 1984 as the defendant had still not been located. The order then expired.

The present application

4. The plaintiff applied for a further order in February 1985, the application being supported by an affidavit from the plaintiff's solicitor, Mr. D.W. Wilkinson who said that the defendant had still not been found but was likely to go to Macau over Chinese New Year to take advantage of the business generated over that period in the gambling industry where she had previously worked. It was also thought that she may wish to go to Macau to re-new her daughters passport.

5. The matter came before the Registrar who refused an order. The plaintiff appeals from that refusal.

Decision

6. Order 44A (2) and (3) as follows: -

7. Clearly, if the court has jurisdiction to make the order and here it clearly does, it has a wide discretion as to whether it should do so. If there is evidence that the debtor is about to leave Hong Kong with no intention to return and that will directly enable him to evade payment, clearly that is grounds for making an order but I do not think it is limited to that. If there are grounds for believing that the debtor, whose whereabouts are unknown, is likely to leave Hong Kong, whether or not she returns at some time in the future, the chances of the creditor receiving payment must be reduced. Here it is the judgment creditor's case that the judgment debtor has business interests outside Hong Kong and may well wish to leave to attend to them, as well as attend to personal matters. It says that she should not be allowed to do so without paying her debts which clearly she is trying to avoid. I think that is right. I furthermore do not see what injustice is done to the debtor by the making of an order in these circumstances. It will expire in one month unless renewed, it only restricts the debtor's movement in and out of, but not within, Hong Kong and can be discharged on payment of the amount due.

8. I therefore allowed the appeal and made the order sought.

Representation:

D.W. Wilkinson (Johnson, Stokes & Master) for the Applicant/ Plaintiff.

Defendant absent.