Lun Kwai Har v. Hung Ying Yi

HCA 1164/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1164 OF 2013

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J U D G M E N T

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1.I have a summons before me dated 3 July 2013, effectively for the continuation of a Mareva injunction that I granted on an ex parte basis on 28 June 2013. The injunction freezes the assets of the defendant up to the value of approximately HK$1.4 million. The complaint of the plaintiff is that she is a joint holder of a bank account together with the defendant containing the proceeds of sale of a property of which they were tenants in common in equal shares. The property was sold in 2012 and the net proceeds were paid into the joint account. The plaintiff complains that, despite demands, the defendant has refused to return to her half of those proceeds to which the plaintiff says she is entitled.

2.In the affirmation used for the ex-parte application, the plaintiff deposed to the fact that the defendant cohabited with the plaintiff’s son and had two children.  The plaintiff said that at about the end of May 2013, her son told her that the defendant had deserted him and left the home where the family had been living.  The plaintiff then said that she called the defendant’s telephone number and repeatedly demanded for the return of her portion of the proceeds of sale of the property but that the defendant refused.  I was also told at the ex-parte hearing by counsel, on instruction, that the plaintiff had called the defendant two to three times but nobody answered the phone. 

3.In paragraph 30 of her affirmation, the plaintiff said:  “Up to the date of this affirmation and despite my repeated attempts, I am unable to contact or locate the respondent.  One possibility, I think, is that she might have returned to the Mainland China situated at 福建省晉江市金井鎮埕邊鄉南區39區, because her parents live there”.  In her supplemental affirmation at paragraph 4(d), the plaintiff again said:  “I also verily believe that the defendant has relocated to her parents’ home in the Mainland China as stated in my first affirmation”.

4.In fact, as it turns out, the defendant has operated a shop in Nam Fung Plaza, Tseung Kwan O, for years, as is well known to the plaintiff, yet there is not a single mention in her affirmations of the fact that the defendant has operated a shop, nor the address of the shop.  The plaintiff obviously knew that it was possible to contact the defendant at that shop because she obviously gave instructions to her solicitors to have the legal documents served at that shop, which in fact they did, as a result of which, the documents did come to the notice of the defendant who has appeared before me this morning. 

5.In these circumstances, I am of the view that there has been very serious material non-disclosure by the plaintiff at the ex-parte hearing.  I make clear I make no criticism of the plaintiff’s legal advisers because I have no evidence that they were aware of the material information.  But the fact is that the picture portrayed to the court at the ex-parte hearing was that the defendant was uncontactable, had probably left the Territory, and was likely to be evading contact with the plaintiff. 

6.I did say, at the ex parte stage, that the case was a very marginal one for a Mareva injunction and what tilted the balance in favour of the plaintiff at that stage was the impression I was given as I have just described. 

7.Now, as it has transpired that the defendant is actually operating a shop in a shopping mall and has been doing so for years, it seems to me that the present dispute is no more than an ordinary dispute between two individuals about certain sums of money.  I am not satisfied that there is such risk of dissipation as to warrant a Mareva injunction over the defendant which will have a serious deleterious effect on the business of her shop. 

8.For that reason and also for the reason that the plaintiff has been guilty of very serious material non-disclosure, I have concluded that I ought to discharge the Mareva injunction and there will be an order accordingly.

Mr Henry L W Fung, instructed by Augustine C Y Tong & Co, for the plaintiff

The defendant appeared in person