Ng Wing Shing v. Secretary for Justice
Read the full judgment text of DCCJ 4599/2004 on BabelCite. This District Court judgment was delivered on 13 June 2006.
1. On 2-3 March 2006, the case was tried before me.
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DCCJ 4599/ 2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4599 OF 2004 ____________________ BETWEEN
Coram: Deputy District Judge E. Yip in Chamber Date of Hearing: 6 June 2006 Date of Judgment: 13 June 2006 __________________________________ REASONS FOR DECISION _____________________________________ The background 1.On 2-3 March 2006, the case was tried before me. 2.On 17 March 2006, I handed down judgment. 3.On 29 March 2006, the judgment was sealed. 4.On 26 April 2006, the 28 days' period for appeal expired. 5.On 17 May 2006, the plaintiff lodged an application for leave to appeal my decision. This was apparently 3 weeks out of time. 6.At the hearing on 6 June 2006, upon the plaintiff's explanation, on the ground of his application for legal aid and the 42 days' stay thereafter, the defendant conceded that the plaintiff's present application was not out of time. The law on leave to appeal 7.The general test which the court applies in deciding whether or not to grant leave to appeal is this: leave will normally be granted unless the grounds of appeal have no realistic prospects of success (Smith v. Cosworth Casting Processes Ltd (Practice Note)[1997] 1 W.L.R. 1538; [1997] 4 All E.R. 840, CA). The crux of the plaintiff's case 8.The plaintiff did not deny that the Loan Agreement was binding on him and its terms were valid. Clause 1(e) expressly provided for an unfettered discretion to the defendant in the way it could enforce the terms. Of relevance in the present case was its election to enforce the repayment of the loan as an unsecured creditor. It was consistent with the common law position that a secured creditor might so elect. The plaintiff was and is arguing that the defendant had done so out of ignorance of the correct legal position (as a secured creditor) at the material time. As soon as it became aware of the correct legal position as advised by DOJ, it ought to have made retrospective deductions. 9.My findings were that the defendant owed no duty, whether under contract or tort, to prefer the plaintiff's interest to other creditors' interest. Even if the DOJ's advice had become available before the 39 months in question, the defendant could still have refused, as it did, to make any deductions for that same period. The aforementioned clause (and the common law in any event) would exclude the defendant from such a complaint. Ground 1 (para. 2 of plaintiff's affirmation) The defendant's ignorance and unawareness 10.The plaintiff now submits that the defendant should have made retrospective deductions. The non-deductions arose from the defendant's ignorance and unawareness of its proper legal rights, namely its priority as a secured creditor over unsecured creditors. 11.I found that the defendant could elect, but was not bound, to enforce its secured housing loan in priority over unsecured creditors during the defendant's bankruptcy. The plaintiff had no remedies for the defendant's election to suspend the monthly deductions during the defendant's bankruptcy. 12.I do not think the plaintiff's submission is arguable because Clause 1(e) of the Loan Agreement stipulated that:
It is clear that this clause is applicable. In any event, the fall-back position at common law is that a secured creditor is not obliged to resort to his security [Downsview Nominees v First City Corp [1993] AC 295]. He can elect to claim repayment by the debtor personally[re BCCI (No. 8) [1998] AC 214, per Lord Hoffmann, citing China and South Sea Bank v Tan [1990] 1 AC 536]. Ground 2(para. 3 of plaintiff's affirmation) The defendant's inconsistency of stance 13.The plaintiff now submits that the defendant had to be consistent. It is not permissible for the defendant to change its stance from an unsecured creditor to a secured creditor or vice versa without taking necessary remedial steps. 14.I do not think this submission is arguable because Clause 1(e) of the Loan Agreement stipulated that:
Ground 3(para. 4-8, 10-11, 14-16 of plaintiff's affirmation) The defendant's wrong steps in the wake of DOJ's advice 15.The plaintiff now submits that I should not construe DOJ's written advice as advising on a non-retrospective action on the part of the DAS. He was not informed of this non-retrospective effect by the DAS. Otherwise he would not have instituted the present proceedings. 16.The plaintiff also submits on how the advice should be construed by the DAS. The DAS had correctly withdrawn its proof of debts and repaid the monies previously received. It ought to have made retrospective deductions along the same line. 17.I see no point in either my or the plaintiff's expressing an agreement or disagreement of the way the DAS acted upon the advice. The fact was that upon receiving the advice, the DAS proceeded to make deductions after the suspension but would not make any retrospective deductions. The DAS might be right or wrong in pursuing its remedies in such a way. However, the Loan Agreement and the common law as aforementioned, which the plaintiff never disputed, would be a complete answer to the plaintiff's case. Ground 4 (para. 9 of plaintiff's submissions) The defendant cheating him 18.The plaintiff now submits that whether intentional or not, the DAS had cheated him by treating him as an unsecured creditor. The DAS should have known of its rights as a secured creditor. If it had told him in time, he would have repaid it or forced it to make the deductions. 19.I regard that the plaintiff had had full opportunity to seek legal advice. In any event, the plaintiff had been asked to pay but he was unable to repay. He now says that he would have repaid. This is against the evidence as found. Besides, he cannot force the DAS to make deductions. The Loan Agreement and common law aforementioned, which the plaintiff never disputed, would not allow such forcing. Ground 5 (para. 12 of plaintiff's submissions) The defendant not benefiting him at the expense of other creditors 20.The plaintiff now feels that it seemed that my judgment regarded him as a greedy person. He says that this was not a fair judgment because it contained a discriminative word. 21.Nowhere in the judgment or during the proceedings did I or anyone ever call him greedy. He cannot now call himself by this name and complain that I had done so. 22.His complaint was that the DAS had not helped him get the maximum benefit. Such maximum benefit could only come at the expense of the other creditors. He has not explained why this finding is incorrect. Ground 6 (para. 13 of plaintiff's submissions) Questioning the witness and defence counsel 23.The plaintiff now complains that he was not familiar with the court procedure. He had not properly cross-examined the witness (Mr Lo Wai Man) and the defence counsel. He wants to do so now. 24.I see no basis for this complaint. He was given full opportunity to cross-examine the witness and present his case at trial. He has no right to cross-examine the defence counsel in any event. The conclusion 25.The plaintiff does not seek to pose any question of law or fact. He rather challenges the way in which the defendant exercised its discretion under the Loan Agreement. He has not explained why the discretion ought to be exercised in his favour. I see no realistic prospects of success in his case. I refuse his present application. 26.There is no apparent reason why costs should not follow the event. The defendant shall have costs of the present application with certificate for counsel. This order nisi shall become absolute after 14 days from today. Dated this 13 June 2006
Plaintiff (Applicant): Mr. Ng Wing Shing, acting in person. Mr. Andrew Bullett, instructed by Department of Justice for Defendant (Respondent). |
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