Shyam Naraindas Kirpalani Alias Nk Shyam v. Days Imternational Ltd

CACV000146/1982

Headnote

Practice and procedure - arrest before judgment - 0.44A Rules of the Supreme Court - the application of the Order is not limited to a defendant who is "more or less permanently residing in Hong Kong" - dictum in Moran[1910] H.K.L.R. 216 not applied - dictum in Lincoln International [1963] H.K.L.R. 930 approved and applied - no cause shown by the defendant on the facts - "sufficient bail" for the purposes of O.44A r.3(2) & (3) can only be given by a surety or sureties (who must bind themselves to pay any sum that may be adjudged against the defendant if he fails to appear when called upon) and not by the defendant's personal recognisance - under O.44A r.3 (4) if instead of giving bail by sureties the defendant offers to deposit a sum of money (or valuable property) the Judge should, on the material before him, assess what sum of money, with costs, is likely to be adjudged against him and accept that amount.

BETWEEN

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Coram: Hon. Leonard, V.P., Cons & Fuad, JJ.A.

Date: 26 November 1982

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JUDGMENT

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Cons, J.A.:

1. My Lord Fuad J.A., in the judgment he is about to deliver, will set out in full detail the circumstances behind this appeal. I am able therefore to take my start direct from the Notice of Appeal, which contains the following grounds of appeal :

The second ground has not been pursued for practical reasons and we do not need to deal with it now. It may, however, fall for consideration on some other occasion for Mr. Bunting, who appears on behalf of the appellant, does not concede that it has no merit.

2. Mr. Bunting's initial contention is that Order 44A is intended to apply and does apply only to defendants who are, or at least until the time that the application is made, have been ordinarily resident in Hong Kong. He relies on the word "leave" as it appears in the phrase "about to leave the jurisdiction". He suggests that it carries the sense of final departure from the place where the defendant has been living, one of the several meanings given to the word by the Shorter Oxford English Dictionary where it is put as "to cease to reside at a place".

3. In support of his argument Mr. Bunting makes four points. Firstly he suggests that in the context of Order 44A it is a meaning more appropriate than that of simple departure. Alternatively, he contends that the application of the Order to persons who do not ordinarily reside here would lead to patent absurdities and injustice. He suggests that the transient businessman may well not be carrying sufficient monies on his person and is unlikely to have friends here willing to accept the responsibility of going surety. His position would have been even worse in 1873 when what is now Order 44A was introduced here by way of primary legislation. Communications and the transfer of monies from one part of the world to another were not then as advanced as they are today. It follows then in Mr. Bunting's suggestion that the transient businessman would almost certainly have found himself in prison until the time came for trial, with the additional difficulty of preparing his defence in that situation. The Legislature, he says, cannot have intended such disastrous consequences to fall on those who came here for our benefit as well as their own. Furthermore he points out that it would, on that construction, be perfectly feasible for a person having no connection with Hong Kong, and a cause of action similarly removed, to arrest and hold here another equally unconnected person who just happened to be passing through.

4. Mr. Bunting's third point is not quite so straightforward. As I understand it, it is this. The rule in the Indian Code of Civil Procedure 1859 from which the Hong Kong provisions appear to have been taken requires an intention on the part of the defendant to avoid or delay the plaintiff. That intention, says Mr. Bunting, would be impossible to prove in the case of a person present for only a few days. There was therefore no need for the draftsman of the Indian Code expressly to exclude foreign residents for in any event they could not have been caught. When the provisions were enacted in Hong Kong it was not thought necessary to include the question of intent. Thus, as it were by a side wind, the foreign resident was brought within the net. Mr. Bunting submits that the Legislature cannot have intended to proceed in this fashion. Had they deliberately intended to include foreign residents within the provisions they would have said so clearly. The fallacy of this argument is to my mind contained in the underlying premise. It is simply not true that it is never possible to prove such an intent on the part of a foreign resident present for only a few days.

5. Finally Mr. Bunting draws our attention to what he says is a general, although he concedes not very strong, presumption that laws affecting rights do not apply to foreign subjects. The presumption is said to be found in a dictum of Lord Brougham in 1854 at page 970 of Jefferys v. Boosey⁽¹⁾ :

"Generally, we must assume that the Legislature confines its enactments to its own subjects, over whom it has authority, and to whom it owes a duty in return for their obedience. Nothing is more clear than that it may also extend its provisions to foreigners in certain cases, and may, without express words, make it appear that such is the intendment of those provisions. But the presumption is rather against the extension, and the proof of it is rather upon those who would maintain such to be the meaning of the enactments."

For myself, I am unable to draw any assistance from that dictum. It was expressed in an action concerning the availability of English copyright privileges to foreign composers.

6. The construction for which Mr. Bunting strives was propounded forcefully, but obiter, by Sir Francis Piggott in 1910 in the case of Sun Ming Shan v. Moran ⁽²⁾. His words were adopted later by Macfee J. Gayda v. Hyde ⁽³⁾ . They were rejected with equal force and also obiter by Blair-Kerr J. in Lincoln International Ltd. v. Seymour Feldstein ⁽⁴⁾. Support for his view may be found from O'Connor J. in Fine Furs Ltd. & Anor. v. Louis Levine ⁽⁵⁾. In the intervening period the decision of Huggins J. (as he then was) in Continental Corporation v. Vincenzo Fedele ⁽⁶⁾ appears to favour the latter view.

7. Mr. Justice Kempster below dealt with the matter in these words :

"On reading Order 44A rule 2 I am satisfied the word 'leave' covers both meanings which are collected under the heading 'depart' in Roget's Thesaurus. Further, when considering the possible obstruction to or delay of execution the draftsman had in mind execution against the body. But execution against the body is as well avoided, in my view, when a temporary visitor leaves the territory as when 'a be1onger' does so. I do not think that the relevant words allow of any ambiguity. They are plain and they entitled the Court to make the order impugned."

8. I am of the same opinion. I see no reason to restrict the natural meaning of the word "leave" by confining it to leaving from where the defendant has been ordinarily resident, a phrase that would certainly lead to difficulty in many circumstances. Such restriction would, moreover, deprive the Order of its value in cases where it is undoubtedly appropriate, for example, should a tourist run up heavy bills and seek to leave with the deliberate intent of avoiding settlement. I am not persuaded that honest visitors need fear the operation of the Order. The judges who apply the Order are capable of dealing with any possible abuse. However having regard to the fall in value of money, the figure mentioned in Rule 6 might well merit reconsideration.

9. It is suggested by Mr. Bunting that in the course of the proceedings under Order 44A the judge has two discretions : -

(1)    whether to issue a warrant or not, and

(2)    whether to order the defendant to give bail or not.

The first is said to be derived from the words "it shall be lawful for the Court to issue a warrant". For authority that words to this effect confer a discretionary power we are referred to Emden v. Carte ⁽⁷⁾. The words there come from the Attorneys and Solicitors Act of 1860, "it shall be lawful for the Court or judge to declare such attorney or solicitor entitled to a charge on the property recovered or reserved". However, as I read the passage to which we are referred, it is concerned more with the actual content of the judge's Order than with whether he had a discretion to refuse any order at all in circumstances which were otherwise appropriate for its grant. For my part I am not able to see that the judge has at that stage discretion in the normal sense in which that word is used. What he is required to do is to evaluate the evidence put before him by the plaintiff. If on that evidence he is, as a matter of fact, satisfied that the defendant will be absent from the jurisdiction and that by reason thereof the plaintiff is likely to be obstructed or delayed in the execution of any judgment he may obtain the judge is bound to issue the warrant.

10. The position is different when the defendant, as a result that warrant, is brought before the judge to show cause. Mr. Murray, who appears for the respondent, correctly concedes that there is discretion at that stage although, of course, it is a discretion not to be exercised capriciously, Two basic criteria are set out in Rule 2. In view of these it seems to me that where, after hearing all the evidence and arguments from both sides, the judge remains satisfied upon those two criteria, he ought to require good reason to deprive the plaintiff of the right that authority has thus prima facie extended to him, stronger reason than he might perhaps accept to decline an Order for commital under Rule 4(2). I am not aware. of any guidelines of the kind suggested by the Notice of Appeal nor can I find them in the authorities to which we are referred. If they exist they would to my mind be tantamount to writing into the law the very construction of Order 44A that we unanimously reject.

11. In the course of his submission Mr. Bunting argued without objection a third ground of appeal, which, had he reduced it to writing, would I think have run somewhat on these lines : "the evidence before the judge was not sufficient to justify the issue of the warrant to the bailiff". This is an argument which, he says, any defendant is entitled to raise when showing cause, even though the warrant has in fact already been issued. With that I agree. If after being appraised of all the relevant factors the judge concludes that, had he known of them earlier, he would in fact have refused the warrant, a fortiori he will make no order for bail.

12. It is clear from the rule that the plaintiff has to show more than simply that the defendant is leaving the jurisdiction. He has to show that " by reason thereof" execution is likely to be obstructed or delayed. Thus, the plaintiff has also to show that the defendant is unlikely to be there when he is wanted. Is that by itself sufficient?   On one view it is, for the plaintiff's ability to execute is then inevitably obstructed to the extent that he can no longer enforce his judgment by imprisonment of the defendant a right expressly given to him by Order 49B. On another view it is not, for the plaintiff may well be able to enforce his judgment by other forms of execution or it may be that the defendant will satisfy the judgment without execution. This is the view taken by Sir Francis Piggott in Moran's case where he says at page 222 :

"Then there are other most material points to be considered: the amount of the claim, the position, financial or social, of the defendant - anything in fact which may tend to satisfy the Judge that execution of the judgment by caption of the body is not likely to be resorted to should the plaintiff obtain judgement."

13. Many of the criticisms raised against Order 44A and 49B overlook the fact that imprisonment under the latter is not only coercive towards payment, which undoubtedly it is, but also has considerable value by way of discovery. It is easy to suggest that a plaintiff ought to explore all other avenues before resorting to imprisonment, or that so far as 44A is concerned he ought to show that no other avenue is likely to be open. But the plaintiff's difficulty is that the relevant matters are usually within the exclusive knowledge of the defendant. The plaintiff has no way of forcing the defendant to disclose them until he has actually obtained judgment. Then he can do so in one of two ways. He may obtain an order for examination under Order 48 or he may put the defendant in prison under Order 49B, in which case the defendant on his application for release, which almost invariably follows immediately, is bound to lodge "a full account of all property or whatever nature belonging to the applicant, whether in expectancy or in possession and whether held exclusively by himself or jointly with others, or by others in trust for him ............., and of the place respectively where such property is to be found." The plaintiff may then well find himself able to satisfy his judgment by other means of execution. But for either process the physical presence of the defendant is necessary. If then the defendant is likely to be absent when the time comes the plaintiff will be deprived of what are to my mind rights of very considerable importance in way of execution. Thus from a practical point of view it seems to me that generally speaking Where there is some indication that the defendant may not immediately satisfy any judgement awarded against him and that he is unlikely to be within the jurisdiction at that time a warrant under 44A(2) ought to be granted, or, if the plaintiff is willing, a summons backed by a warrant.

14. Once brought to Court it is then for the defendant to show cause why he should not give bail. Perhaps the most effective way to do that is to show that he intends, and will be able, to meet whatever may awarded against him. Or he may be able as it were to preempt the need for orders under 48 or 49B by sufficient disclosure. I prefer to go no further than that, for that is sufficient cause in any individual case is best left to the judge in the particular circumstances that are before him.

15. In the present instance, the initial application was based upon an affirmation by a director of the plaintiff company together with documents in support. In my view their contents were ample justification for the issue of the warrant. A further affirmation was filed by the same director and another by the defendant himself. Both he and the plaintiff's director gave oral evidence. There was dispute as to certain items in the accounts between them and conflicting versions as to what they had done by way of attempted settlement. Submissions were made. Defence counsel apparently repeated the argument he had earlier put forward based on the defendant's foreign residence, and later emphasized the difficulties of the defendant in being far removed from his own home. Upon final consideration of everything the judge came to the conclusion that there was no reason shown to discharge the warrant. For my part I am not able to find anything in the evidence or argument to show that he was wrong.

16. The cross-appeal sets out two grounds. Counsel expressly abandoned the first. The second turned out not to be a question of law, as would appear from the words in which it is framed, but a question of the actual figure which the judge had suggested might be appropriate if the defendant should think fit to make an offer under Rule 3(4), which up to the date of the hearing he had not. Counsel did not press it further.

17. If the defendant is not able to make a sufficient offer within that rule his only chance of leaving Hong Kong before the conclusion of the trial will be an application under Rule 5. Whether it should be granted or not will of course be a matter for the judge before whom the application is made but it would I think not be impertinent to observe that in my view the words "due diligence" in that rule should be interpreted having regard to the fact that the defendant is detained in Hong Kong against his will. The plaintiff therefore can be expected to make every possible haste in the prosecution of his claim including perhaps an application for a speedy trial.

18. For the reasons I have just given I agreed with the decision we announced earlier, that both the appeal and the cross-appeal be dismissed.

Fuad, J.A. :

19. This appeal concerns the construction and application of 0.44A of the Rules of the supreme Court which, in it various forms, has troubled generations of judges in Hong Kong. The matter arose in this way.

20. At about noon on the 4th November this year the Plaintiff Company, Days International Ltd, issued a writ against the Defendant, Mr Kirpalani, with the following general indorsement -

"The Plaintiff's claim is for US$111,491.12 against' the Defendant as guarantor and/or surety for the price of goods and interest and charges thereon sold to Esenkay (Nigeria) Limited."

21. Shortly afterwards, on the same day, the Plaintiff Company applied for a warrant under 0.44A for the arrest of the Defendant, supported by an affirmation made by Mr. Dayaram, one of their directors. In his affirmation, Mr. Dayaram stated that their claim was for US$111.491.12 plus interest, the amount outstanding from Esenkay (Nigeria) Limited in respect of goods shipped to that company since 1975. He exhibited copies of statements of account between the Plaintiff and Esenkay. Despite repeated demands the amount due was still outstanding. By a letter of guarantee dated 29th October 1977, the Defendant had guaranteed to pay for the price of goods shipped to Esenkay, and interest thereon. He exhibited the guarantee which was in the following terms -

"In consideration of your having agreed at my request to supply Messrs. Esenkay (Nigeria) Ltd. of 118, Nnamdi Azikiwe Street, Lagos, Nigeria with roods I agree to be responsible to you for the price and interest thereon of all such goods as you may hereafter supply to them. This guarantee is to be a continuing guarantee and my liability under it shall not be affected by your giving time or any other indulgence to them.

I reserve the right to revoke by notice this guarantee at any time as to all future dealings by the above with you after the date of such notice ."

No notice of revocation had been given. Mr. Dayaram said that he verily believed that the Defendant was normally resident in Nigeria and only visited Hong Kong occasionally. In Autumn 1979, he had several meetings with him in Hong Kong to settle the amounts then outstanding. However, before matters had been settled he had left Hong Kong suddenly without notice. On 21st April 1980, he had a further meeting with the Defendant and they agreed to meet again on 22nd April. The Defendant had not turned up. He had spoken on the telephone with the Defendant later in the week, who had agreed to meet him the next day, but when he had telephoned the Defendant's hotel on the morning of the day of the proposed meeting, he had been informed that he had already checked out.

22. Since then, Mr. Dayaram continued, he had met the Defendant once in Nigeria, but no agreement had been reached to settle the outstanding amounts. He believed the Defendant had come to Hong Kong on Saturday, 30th October 1982 but he had not contacted him. He had telephoned the Defendant at 9 a.m. on the 4th November (the day the affirmation was made) and had been told that he was leaving Hong Kong at 2.40 p.m. that day. Mr. Dayaram concluded his affirmation as follows -

"8. From the foregoing, I believe the Defendant has and will continue to take steps to avoid meeting his obligations to the Plaintiff, including leaving Hong Kong without notice, and therefore I humbly pray for an Order in the terms of 0.44A of the Rules of the Supreme Court."

23. Kempster, J. granted the application and the Defendant was arrested at the airport where service of the Writ was effected upon him. He was then brought before the Court and Kempster, J. released him. on surrender of his passport. to enable him to seek legal advice.

24. Kempster, J.'s judgement explains that when the Defendant appeared before him at 4.30 p.m. on the 4th November. Mr. Bunting, on his behalf, took two preliminary points relating to jurisdiction, inviting the Judge to rule upon them, before evidence was adduced and before hearing argument on any discretion given to the Court by 0.44A. The Judge accepted this invitation and for the purposes of the preliminary objections, accepted the so far uncontradicted affirmation of Mr Dayaram. In referring to this, the Judge remarked evidence which, I should say, if coupled with certain formal averments would prima facie entitle the plaintiffs to summary judgment for a substantial proportion of the sum claimed in the writ. He added "I cannot imagine that any Court would grant relief under 0.44A unless a strong prima facie case is shown."

25. The Judge then reviewed the cases cited to him -

26. Kempster, J. went on to state his approach to the task of construing 0.44A, in a passage which, I will say at once, is undoubtedly correct and which I would respectfully adopt -

"Sir Francis Piggott clearly detested the sections of the Civil Procedure Code which preceded the order and Hr Justice Blair-Kerr equally clearly approved the Order, 44A, which took their place. For my part the emphasis on anticipatory execution against the body in contrast with anticipatory execution against property has a strange, anachronistic and, having regard to the possibility of abuse, even sinister ring about it. But in the final analysic my views on the desirability of the Order, any more than those of Sir Francis Piggott C.J. or Blair-Kerr J. are neither here nor there. As Blair-Kerr J. recognised the desirability of a particular Order is a matter for the Rules Committee and ultimately for the legislature; informed. doubtless, as to public opinion. It is not for a judge to qualify plain words in order to ameliorate the effect of am Ordinance or Order he dislikes, though he will most strictly construe any Ordinance or Order that affects liberty."

27. The Judge noted that Mr. Bunting had submitted that the word "leave" in 0.44A r.r.l and 2 must be construed to mean "leave the jurisdiction where he has been resident or quasi-resident". He had supported that submission on the basis of ambiguity arising by reference to two of the numerous meanings of the word "leave'' given in the shorter Oxford English Dictionary. He had contended that "leave" in this context meant a final departure, though in another context it might mean temporary departure.

28. Kempster J.'s conclusion on this issue was as follows -

"On reading Order 44A rule 2 1 am satisfied the word "leave" covers both meanings which are collected under the heading "depart" in Roget's Thesaurus. Further, when considering the possible obstruction to or delay of execution the draftsman had in mind execution against the body. But execution against the body is as well avoided, in my view, when a temporary visitor leaves the territory as when "a belonger" does so. I do not think that the relevant words allow of any ambiguity. They are plain and they entitled the Court to make the order impugned."

29. The second preliminary objection (which is no longer a live issue) related to the insufficiency of Mr. Dayaram's affirmation in that no averment had been made that the Defendant was likely to be absent when any judgment was given against him. This objection was also overruled, and the Judge then read Mr. Kirpalani's affirmation and heard evidence from both him and Mr. Dayaram.

30. In his affirmation. Mr. Kirpalani had stated that he is an Indian Citizen residing in Nigeria and had so resided since 1965. His Current Residence Permit expired in November 1983. He had been a director and shareholder of Esenkay since 1973 and his company imported goods from Hong Kong and various other countries in the Far East and South East Asia. He usually travelled to Hong Kong once a year to purchase goods for the company. In addition to the Plaintiff, his company also imported goods from five to six other Hong Kong exporters. His company had had business dealings with the Plaintiff for some years.

31. Mr Kirpalani continued by saying that in about April 1980, his company had received the Plaintiff's statement of account up to 31st March 1980. This was found to be incorrect. He had therefore prepared his company's own statement of account and had come to Hong Kong.    He had met Mr. Dayaram and asked him to go through the latter statement. Shortly thereafter, on a holiday to Hong Kong. he had sat with Mr. Dayaram in his office from 10:00 a.m. to 9:30 p.m. going through his company's statement. On the same day, Mr. Dayaram had given him his counter statement stating the amount they claimed to be correct They had gone through his company's statement item by item. Some items had been agreed but others were still in dispute. Mr. Dayaram had agreed to meet on another day to discuss the remaining items. He had stayed in Hong Kong for the next few days but had not been able to meet Mr. Dayaram again because of his other business engagements. Shortly thereafter he left for India and from thence he had gone to London.

32. The dispute on the state of accounts between his company and the Plaintiff was still unresolved. His company had not received the statement of account exhibited to Mr. Dayaram's affirmation.

33. About his present visit Mr. Kirpalani stated that he had arrived in Hong Kong again on the 30th October. When Mr. Dayaram had phoned him on 4th November 1982 at about 9:00 a.m. at the Hilton Hotel, he had told him that he was leaving for Taipei, and had given him his time of departure and flight number. Mr. Dayaram had asked him when he would be coming back from Taipei; he knew from past experience that he would always come back to Hong Kong after visiting Taiwan on business trips. He had replied that he would be coming back on the 6th or 7th November. Mr. Dayaram had then mentioned an important letter to his own company's Taiwan Office and had requested him to deliver it. Mr. Dayaram's uncle had given him the letter at the Hilton Hotel at about 12:30 p.m.

34. Mr. Kirpalani affirmed that he never had any intention of avoiding Mr. Dayaram or avoiding his obligations to his company (if any). He had made all arrangements for his visit to Taipei including four appointments with his company's business associates there. The appointments had had to be postponed due to his arrest. It was important for him to go to Taipei as soon as possible to fulfil his pre-arranged engagements.

35. Mr. Kirpalani's oral evidence was to the following effect. He began by confirming the truth of his affirmation. He admitted he had signed the guarantee. He had told the Plaintiffs that he did not agree with their statements of account and had given his own version to Mr Dayaram. At the meeting in 1980 he had not accepted that Esenkay owed the Plaintiffs anything. He considered the Plaintiffs owed Esenkay money. All the goods had been paid for by banker's drafts drawn by the Plaintiffs on Esenkay. The Plaintiffs drew bills in relation to all the goods shipped which were either sight or timed drafts and these had all been paid. The bills included interest. His personal purchases were included in the Plaintiffs' accounts. It was normal practice, in turn, for Mr. Dayaram's expenses to be included in the accounts in relation to his visits to Lagos.

36. In the Autumn of 1979 he had gone to Mr Dayaram's office, but found him absent. His father and uncles were working there. He had spoken to Mr. Dayaram, who was at that time in the U.S.A., on the telephone. They had discussed further business and the statements of account. He (Mr. Kirpalani) had said that he would prepare an account and bring it along for discussion. In April 1980 he had brought it to Hong Kong and discussed it with Mr Dayaram and adjusted it (his accounts) in consultation with him. This document was attached to his own affirmation. Mr. Kirpalani had produced his version, also exhibited. Finally they had disagreed, but a further meeting was arranged and after a journey he had returned yet again to Hong Kong. The discussions had taken place before and after this journey. The accounts attached to Mr. Dayaram's affirmation had not been received by him or Esenkay. He had told Mr. Dayaram when he was leaving in April 1980. He had not met him in Nigeria since then.

37. On the 30th October he had come to Hong Kong for business, and also on route for business in Taiwan. Mr. Dayaram and he had many mutual business friends. He had not kept his whereabouts a secret. He had tried to phone him on the 1st or the 2nd November at Tel. No. 250256. He had now learned that he had moved his office. When Mr. Dayaram had phone him he had said that he would be returning to Hong Kong after visiting Taipei. He had ordered a return ticket in Lagos.

38. He was managing director of Esenkay and a 20% shareholder, He had signed the plaintiffs' statements, for audit purposes only, if they had found the figures correct. He had not been a guarantor in 1975. If proceedings were to be held in Hong Kong, any member of the Board of Esenkay could give evidence. It would not be necessary for him to come here. He then referred to certain entries for 15th December 1977. He did not agree with them. He would prefer his lawyer to handle the action. He had not yet decided whether or not to attend the trial of the action in Hong Kong.

39. In cross-examination, Mr Kirpalani said that neither on the 1st or the 2nd November 1982 had he asked anyone where to find Mr. Dayaram for he had other things to do. This had been "low on his list of priorities". Mr. Dayaram had told him that he would like to have a meeting. He had said that they could have one on his return from Taipei. The accounts had to be finalised. He did not know Mr Dayaram's home phone number. He did recall Mr. Dayaram writing to Esenkay asking for settlement of the accounts. If a supplier asked for a personal guarantee from him, he would give it. He no longer did business with the Plaintiffs because their terms were not acceptable. They had increased their demands for interest and commission and disputed the accounts. This dispute had lasted. Since about 1978. He agreed he had signed the Plaintiffs' statements of accounts dated the 31st March 1978 and the 5th August 1978.

40. When re-examined he said that some transactions which had been paid for by bills of exchange appeared in the Plaintiffs'  accounts, some did not. The volume of business between the Plaintiffs and Esenkay had been much larger than was shown by their statements of account.

41. When Mr Dayaram gave evidence he said that the Defendant had not suggested that he disputed the balance claimed by the Plaintiffs. He had prepared the statements and the Defendant had come to his office. They had spent 1-1½ hours going through the accounts exhibited to his affirmation. After lunch the defendant had said he was leaving but could return; he had not done so. He had called at the Hilton when Mr. Kirpalani said he was unwell. The following clay Mr. Kirpalani had said he was leaving on the evening flight. When he had telephoned during the day however, Mr. Kirpalani had gone. The Defendant had supplied him with a copy of the accounts exhibited to his affirmation in early April of 1980.

42. As regards the meeting in April 1980, its purpose was to reconcile differences between the respective accounts. For this purpose he had prepared the statement, exhibit D2. He had provided the Defendant with relevant papers in relation to each disputed item. The defendant had made amendments agreeing to his figures. A further meeting had been arranged for the next day. The Defendant had never explained why he had not attended that meeting.

43. Referring to certain entries in the Defendant's reckoning and his own reconciliation, he said that the discrepancy between the two documents was due to the Defendant having stopped doing business with them. This was an arbitrary decision. The same considerations applied to another entry "Almost the whole account is based on this sort of 'discrepancy'". He mentioned entries regarding a shortage of goods on arrival. It was for the Defendant's company to claim from shippers or insurers. The Defendant signed their statements in Hong Kong during his annual visits. It was not absolutely necessary for him to sign though he wished him to do so. At the end of every financial year his auditors gave him forms and he typed figures into the forms to show the state of the accounts. His auditors had asked the debtors or creditors to confirm the state of the accounts. These were assumed correct, if not queried. Esenkay had never queried the figures.

44. He had learned of Mr. Kirpalani's visit on this occasion from a friend staying at the Hilton. The Defendant knew his home telephone number for he used to use it when the time difference (Nigeria/Hong Kong) did not allow a call to be made to his office. The Defendant had said that he was thinking of leaving for Taipei after 2.00 p.m. and had a reservation for 2.40 p.m. He was aware that the Defendant disagreed about the state of the accounts in 1980. He had delayed proceedings hoping he could convince him that Esenkay should pay up. The Defendant had declined arbitration. The negotiations had been conducted in a friendly spirit. He denied that the Plaintiffs owed anything to Esenkay.

45. At the beginning of the Judge's note of the cross-examination is the following sentence:"[It was accepted that the differences between the accounts were to be regarded as challenged.]" Then Hr Dayaram refers to an entry for 14th March 1980, and said the dispute related to interest. for the principal had been repaid. Esenkay had never paid bills on time. The interest rates were determined by the bank. That interest was interest which the plaintiffs had already paid to their banks. In most cases he had documentary evidence from the banks. The banks lent to them against bills of lading. Interest charges in the Plaintiffs' accounts arose from the supply of goods to Esenkay.

46. The judgment then continues and the Judge states his conclusions in the light of both the affirmations and the evidence given viva voce before him. This is what he says -

"It is confirmed that the defendant is a businessman normally resident in Nigeria. presently staying in the Hilton Hotel, who has over the years had considerable business dealings in this territory. I have seen two documents prepared by the respective parties in 1979 relating to the account as between the plaintiffs and Esenkay (Nigeria) Ltd. It transpires that the guarantee sued on was given in Hong Kong and relate to contracts for the shipment of goods from Hong Kong to Nigeria. In the light of the picture so presented Mr. Bunting has sought to shoo cause why the defendant should not have been arrested and called upon to or now give. security for his appearance to answer any judgment that may be given against him in tire action. I do not think I do Mr. Bunting any injustice if I say that he has adapted his submission in relation to transient visitors who have shown no overt intent to defeat creditor to contend that, in the exercise of its discretion, the Court should not order security from such persons. Were I to accept his invitation to discharge the warrant and release the defendant I would, in effect, be construing Order 44A in the way that some hours ago I found impossible; thereby acting with a degree of intellectual dishonesty Transience may be a factor relevant to the exercise of discretion when cause is sought to be shown but on all the materials before me I do not find it sufficient in itself and I am quite unable to say whether or not the defendant is seeking now or will seek hereafter to escape execution. In any event the test under rule 2 of the Order is objective: "the execution - is likely to be obstructed or delayed"."

47. Kempster J. then went on to discuss what figure he should fix for the purposes of O.44A r.3(4) - that is to say the sum he would accept as "sufficient to answer any sum of money that may be adjudged against him in the action with costs" So that it could be accepted as a deposit in lieu of bail. He thought that the, appropriate figure would be US$ 50,000 and on the material before him it could not possibly be said that he erred in any way in making what was a wholly reasonable assessment The. Judge then turned to consider the effect of O.44A r.3 (2) (3) and (4). I respectfully agree with his conclusion that the plain meaning of sub-rules (2) and (3) is that a defendant can only give bail by a surety or sureties and not by a personal recognisance, and the surety or sureties must undertake to pay any sun of money that may be adjudged against the defendant, with costs, if he does not appear. There is no appeal on this point but Mr Murray, for the plaintiff/respondent did, file a cross-appeal on the interpretation of sub-rule 3(4) in these terms -

"The Learned Judge erred in holding that the sum of money that a Defendant may elect to offer under O.44A r.3(4) could be less than an amount sufficient to answer any sum of money that may be adjudged against him in the action with costs."

48. While not expressly abandoning his cross-appeal, Mr. Murray did not seek to pursue it with any great conviction after certain interventions from members of this Court. In some cases, the sum in question will be easily ascertainable. Here it was not. In every case the Judge has to fix the sum, and here. as I have already mentioned, the Judge arrived at a figure which cannot possibly be assailed on the evidence which was before him. To the extent that the cross-appeal was still before us, I was constrained to indicate that I would dismiss it.

49. I have had the advantage of reading in draft the judgments of my Lords the Vice-President and Cons J.A. and I respectfully and entirely agree with them that the Judge correctly construed 0.44A, by not following the dicta that suggested that a defendant had to be "permanently resident" or "quasi-permanently resident" in Song Kong before the Order could apply to him. Of the state of the law at the time Kempster J. reached his decision, one can only say that it was unsettled. I have earlier read the Judge's approach to the interpretation of 0.44A and expressed the view that it was right. MAXWELL ON THE INTERPRETATION OF STATUTES (12th Edition) p.29 puts the matter in this way -

"Where the language is plain and admits of but one meaning. the task of interpretation can hardly be said to arise. 'The decision in this case ' said Lord Morris of Borth-y-Gest in a revenue case, calls for a full and fair application of particular statutory language to particular facts as found. The desirability or the undesirability of one conclusion as compared with another cannot furnish a guide in reaching a decision.' Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient. Words are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the court is to expound the law as it stands, and to 'leave the remedy (if one be resolved upon) to others."

50. I have reviewed the facts that were before Kempster J. in great detail for they demonstrate how harshly O.44A can work. The evidence clearly showed that the figures were disputed. In the final analysis much will turn on the amount and rate of interest the Plaintiffs are entitled to charge Esenkay and therefore claim from the Defendant, a situation not uncommon in this kind of case. The Defendant swore that he was willing to meet his obligations - although the contrary was averred in the affirmation which founded the proceedings, his assertion was not challenged in cross-examination. If the figures were genuinely disputed (and there is nothing to suggest that they were not) why should the guarantor immediately pay up and, if so, what amount? What if it were true, as the Defendant swore, that not only did Esenkay not owe anything to the Plaintiff but they were in fact owed money by the Plaintiff? Mr. Dayaram puts a sinister interpretation upon Mr. Kirpalani's failure on occasion to keep appointments, and his affirmation gives the impression that all or most of Mr. Kirpalani's time in Hong Kong should have been devoted to him. What if the Defendant's version of these matters were true? Mr. Dayaram said the negotiations were friendly. Mr. Kirpalani gave him his flight number and time of departure and told him he would be returning to Hong Kong on the 6th or 7th of November. Far from remonstrating with Mr. Kirpalani, Mr. Dayaram gives him a letter to deliver on his behalf in Taiwan. The Plaintiff then issues a Writ with an indorsement that is inadequate in that it does not aver a written guarantee, or give its date, and inaccurate in that sums due before the guarantee was entered into were claimed. If Kempster J.'s assessment turns out to be approximately right, the Plaintiff was claiming twice the amount to which he was entitled. He then has Mr. Kirpalani arrested at the airport and hauled before the court.

51. The goods shipped to Nigeria were, it seems, regularly, but sometimes belatedly, paid for by bills which included interest. The Plaintiff knew that if a dispute arose he would, in all probability, have to serve his writ outside the jurisdiction, a jurisdiction with which. it appears. Hong Kong has no reciprocal enforcement agreement. Although the lists are up to date, in a case such as this, where considerable discovery will be necessary, the action may not come on for trial for quite some time, The Defendant may not have friends here who are willing to stand surety for the full amount of any judgment that may be obtained. He is unlikely to have the. sum required with him, and exchange control formalities may make it difficult and time-consuming before an adequate sum can be remitted from Nigeria. All this tine the Defendant will be kept here and (but for the practical common sense of the Judge, if I may be permitted to say so) in prison. He will not be able to meet his other business commitments and may lose financially. If what has happened gets around, it will not do much good to his credit in Hong Kong. When the statement of claim is eventualy received, and legal advice given, it might be that the Defendant will not seek to defend the action. If he does (because some items remain disputed) it may be found that the claim fails. If it does not, it may be that no fore of execution will have to be resorted to. The Defendant would not be the first to pay a judgment debt so that execution proceedings are wholly avoided.

52. As the hearing of this appeal progressed, I was at one time of the opinion that it might be possible to hold that in the light of all this the order appealed against should not have been made. But having considered the matter further I feel unable to say that the Judge erred. for nothing that had been said before him could negative the stark fact that the Defendant's departure (and possible continued absence from Hong Kong at the time judgment is given) would deprive the Plaintiff of the right to execute his judgment by imprisonment. The spectre of the debtors' jail still hovers over Hong Kong. It must follow therefore that by reason of the Defendant's departure (and possible absence at the relevant time) it is indeed likely that execution will be obstructed or delayed. I take the word "likely" in this context to mean likely in the sense of a real possibility. The word connotes more than a mere possibility, but something less than a high degree of probability. The position here is similar to that in the Continental Corporation case (supra) where Huggins J. (as he then eras) said at p.937 "Once the respondent leaves. their only hope of levying execution against him would be dependent upon his returning to the Colony after judgment." I conclude that Kempster J. was therefore right in holding that Mr. Kirpalani was a person who could properly be required to give security when all the circumstances of the case are taken into account. Once this is decided the only matter left for consideration, of course, was whether or not the Defendant had shown cause. For the reasons given by my Lords Leonard, V.-P. and Cons J.A. the Defendant, I am now persuaded, did not discharge the burden placed on him by these merciless provisions.

53. It was for these reasons that I indicated, at the conclusion of the hearing, that I would dismiss the appeal.

Leonard, V-P.:

54. I have had the advantage of reading in draft the judgment of Fuad, J.A. and in particular his detailed and meticulous account of the evidence in the Court below. There is no necessity for me to repeat it. The original order that a warrant should issue was made on the evidence contained in Mr. Dayaram's first affidavit and on that evidence alone.

55. When the appellant's counsel took preliminary points relating to jurisdiction he did so before any further relevant evidence was adduced. Kempster J. therefore accepted Mr. Dayaram's evidence as outlined in the affidavit to enable him to decide the preliminary points and he accepted it as showing a prima facie entitlement to summary judgment for a substantial proportion of the sum claimed in the writ. The submissions made by counsel which were mirrored by his submissions to us did not find favour with the judge. The first submission was to the effect that the "scheme" of Order 44A "contemplates a permanent or quasi permanent residence broken up by leaving the jurisdiction". This submission was dependent on the further submission that the word "leave" in Order 44A was ambiguous. The second submission was that the-evidence was insufficient to lead to a warrant in that it failed to show that the defendant was likely to be absent when any judgment was given against him. It was only when he had ruled against Mr. Bunting on those submissions that the judge went onto consider the affidavit filed by the defendant and hear viva voce evidence from both the plaintiff's representative and the defendant to determine whether or not the defendant showed cause "why he should not give security for his appearance to answer any judgment that may be given against him in the action".

56. It is somewhat difficult to determine precisely the facts found by the judge as a result of his consideration of the affidavits As tested by the viva voce evidence. Fuad, J.A. has set out the relevant paragraph of his judgment which ends Transience may be a factor relevant to the exercise of discretion but ... I do not find it sufficient in itself and I am quite unable to say whether or not the defendant is seeking now or will seek hereafter to escape execution. In any event the test under Rule 2 is objective the execution - is likely to be obstructed or delayed'". I am satisfied that these two sentences indicate a finding that the defendant has failed by his affidavit, as tested by the viva voce evidence, to satisfy the judge that if he left he would return to abide any judgment or would immediately satisfy any judgment that might be given. It is fair to note that the defendant was not asked if he would so return or would so satisfy any judgment : it is equally fair to his legal advisers to note that any such assurance by him would probably have carried little weight. Unless accompanied by facts to give it verisimilitude it would have remained bald and unconvincing; and no such facts were put forward. The trial judge must, I consider, have found that in his attempt to show cause the defendant had urged no factor of note beyond transience. He had not shown that his absence consequent upon his leaving would not result in execution being obstructed or delayed. This conclusion was to my mind fully warranted particularly as the defendant said in evidence "If proceedings or trial is held in Hong Kong any member of the Board of Esenkay could give evidence. It would not be necessary for me to come here ... I have not yet decided whether or not to attend the trial of the action in Hong Kong myself." Commenting on his failure to contact the plaintiff concerning the alleged debt on the lst or 2nd November the defendant had said "I had other things to do. This was low on my list of priorities." This evidence does not evoke the picture of a man anxious to meet his liabilities nor is it suggestive of any probability that if judgment is obtained it will be satisfied in the absence of the defendant.

57. Having reached the conclusion that the defendant had not shown cause the judge went on to indicate to the defendant that he would be disposed to accept in lieu of bail an offer by the defendant to deposit in Court a sum of U.S.$50,000. In arriving at this figure he regarded himself as not bound to fix the optimum figure which the plaintiffs might secure and did not consider himself bound to take "the defendant's circumstances into account in fixing the amount" as had been suggested in Moran's case. Noting that he could not imagine that the Court would commit a "man of straw" to prison pending trial when dealing with the submission that he could accept a personal recognisance in lieu of bail, he considered that the two sub Rules (2) and (3) of Rule 3 must be read together, noted that their relationship had apparently not been the subject of argument before Mr. Justice Li or the Court of Appeal in Lin Fung Trading Co.v. Hanade Wafu ⁽¹⁾ and concluded that the defendant could only give bail by surety or sureties who undertake to pay any sum - not a fixed sum - that may be adjudged against the defendant in the action together with costs. I respectfully agree; a personal recognisance is not "bail" in the ordinary or legal meaning of that word. That meaning involves the notion of a party being delivered into the hands of those who bind themselves for his due appearance. The trial judge concluded:

"In the absence of an offer under Rule 3 sub-rule (4) I have no option but to order him to give sufficient bail for his appearance which he must do by surety or sureties undertaking in the terms of sub-rule (3). I am told that this matter may well be the subject of appeal on one side or both. I propose, in any event in the absence of opposition from the plaintiffs, to extend the time during which the defendant may continue to have his liberty his passport remaining with the bailiff, until trial or further order pursuant to the discretion granted to the Court by rule 4(2) on the footing that he will not comply with my order to give bail."

58. On the first ground of appeal Mr. Bunting put his case on the footing that the words "about to leave the jurisdiction" which occur in both Rules 1 and 2 are capable of meaning two things either "leave Hong Kong where he normally resides". or "leave Hong Kong" simpliciter and suggested that the first meaning was the more general. I accept that the word can mean "to abandon" or "to forsake" "to cease to reside at a place" and "to go away permanently". Another division of this Court in Edward Chan v. Technical Waxes (N.Z.) Ltd.⁽²⁾ appears to have given it the last of these meanings. There, however, the evidence was that the person in question was leaving on a Saturday and returning on the following Tuesday. His leaving in such circumstances would not obstruct or delay execution. The case might well have been differently decided had his return been shown to be in some way subject to postponement and is not authority for reading the word "permanently" into the Rule rather does it indicate the necessity for reading Rules (1)and (2) together and in their entirety.

59. It was not on the basis that a temporary absence did not amount to "leaving" that Mr. Bunting put this part of his argument. His case was rather that a person could not be said to be leaving a place unless it was a place at which he normally was. From this he went on to suggest that in context the ordinary meaning of the words necessitated proof that the defendant was about to leave Hong Kong where he was normally resident. Alternatively he suggested that there was a discretion and that the decided cases provided an unwritten guideline that the Courts ought not to make orders against foreigners nor exercise the discretion to do so except in exceptional circumstances. The existence of such a discretion was, he suggested, shown by the use of the words "it shall be lawful for the Court" in Rule 2 in contradistinction to the use of the word "shall" in Rule 3(1) and (2) and the word "may" in Rule 3(4).

60. In furtherance of his primary argument Mr. Bunting brought us first to Black-Clawson Ltd. v. Papierwerke A.G.⁽³⁾ and in particular to the passage relating to interpretation with regard to the nature of the mischief at which the statute is aimed in the judgment of Lord Reid at page 614:

"It has always been said to be important to consider the "mischief" which the Act was apparently intended to remedy. The word "mischief" is traditional. I would expand it in this way. In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have intended to remedy by the Act. There is a presumption which can be stated in various ways. One is that in the absence of any clear indication to the contrary Parliament can be presumed not to have altered the common law further than was necessary to remedy the "mischief". Of course it may and quite often does go further. But the principle is that if the enactment is ambiguous, that meaning which relates the scope of the Act to the mischief should be taken rather than a different or wider meaning which the contemporary situation did not call for."

I agree that to ascertain the mischief aimed at by the Order one must look to conditions as they were in 1873 when these provisions were incorporated in Code of Civil Procedure but it is not established that at that time the legislature did not intend these provisions to apply to foreigners as readily as to (if I may use the current ugly phrase) "Hong Kong belongers" I do not consider that Mr. Bunting can get comfort from the 'mischief Rule'.

61. His argument however was more far-reaching. First he went to Sun Ming Shan v. Moran⁽⁴⁾ in which Piggott C.J. had castigated "the arrest of what are called absconding defendants ' " as "a barbarous practice a relic of the dim ages of jurisprudence". It is to be noted that the remarks of Piggott C.J. on this subject were entirely obiter. Huggins J. in Continental Corporation v. Fedele⁽⁵⁾tabulated at page 932/3 the principles which Piggott C.J. sought to establish as follows :-

It is not entirely clear if Huggins J. accepted the 4th "principle". He clearly accepted the lst. The 2nd was accepted in Chan v. Technical Waxes (N.Z.) Ltd.⁽²⁾ I do not think the 3rd is disputed provided the word "manifestly" is given the required emphasis. There can be no doubt about the 5th but the 6th, 7th. 8th and 9th may be subject to doubt.

62. I am concerned at present with the 4th. Huggins J. dealt with the question in the' following manner:

"Next it was argued that the respondent is not a resident or even a quasi resident of Hong Kong and I should apply the decision in Hyde's Case.⁽⁶⁾ To this counsel for the plaintiffs replied that the respondent certainly could not be aptly described as being 'in transit': he came here deliberately to attend to business matters. Prior to that he spent over a month in Hong Kong and during that time he had negotiated and signed the six contracts. This, it was suggested was a very different case from the two which had been cited and I think there is much force in the argument. 14here does one draw the line even if one adopts the reasoning in the two cases? When does residence become 'permanent or quasi permanent'? If a person takes up residence just long enough for summary judgment to be obtained against him upon a contract entered into during his stay it cannot be doubted that he would be liable to imprisonment if other forms of execution proved ineffective: theoretically at least residence of a month or 6 weeks would be ample. If that be so I would think it difficult to justify refusing an order for security in similar circumstances. I am not disposed to doubt the decision in Hyde's Case⁽⁶⁾ for I think it may well be said that the draftsman of 0.26 r.l never contemplated that it would be used by one stranger to the Colony against another stranger to the Colony in respect of a matter unrelated to the Colony. Although at first I was inclined to a different view I am now persuaded that where a defendant has come to the Colony and there made a contract (particularly if he came for the purpose of making that contract) it would be wrong to deny the other contracting party the benefit of this rule in the event of an alleged breach. In the present case the respondent is an Italian national and there is no treaty for the reciprocal enforcement of judgments which could assist the plaintiffs. Once the respondent leaves, their only hope of levying execution against him would be dependent upon his returning to the Colony after judgment. I am satisfied that the respondent is a person who can properly be required to give security if the other circumstances justify the taking of security."

I must confess that I do not find Gayda v. Hyde⁽⁶⁾ of assistance for there MacfeeJ. was content to "adopt the views (be they obiter or otherwise)" of Piggott C.J. in Sun Ming Shan v. Moran⁽⁴⁾ and regarded as "hypothetical'' the suggestion that if the fact that the defendant is a non resident were to affect the issue the rule could not be invoked in such a case as a person in Hong Kong in transit who accepts delivery of a lot of goods from Hong Kong retailers whom he does not pay. Such was admittedly not the case before Macfee J. but it may have been in part the mischief aimed at even as early as 1873 and was scarcely hypothetical. It was rather an example indicating the falsity of the proposed interpretation.

63. Much of Mr. Bunting's argument concerned itself with an attempted refutation of opinions expressed obiter dicta by Blair-Kerr, S.P.J. in Lincoln International Ltd. v. Feldstein.⁽⁷⁾ In that case Blair-Kerr, S.P.J. followed a somewhat unusual course. He was faced with an application to make a consent order to which he naturally acceded but because it seemed to him that the decisions of the Court were somewhat in disarray he felt that he ought to record his views. These views deserve respect not only because of their source but because of the erudition with which they are expressed. I do not consider that to dismiss them with the phrase "the admitted obiter dicta in the otherwise learned analysis of Mr. Justice Blair-Kerr" as was done in Qualtime Industries Ltd. v. Bernardus Christian Van Hommert⁽⁸⁾ is to give them that respect. Neither the dicta in Moran's case nor those in Lincoln International are binding on us and to that extent we must approach the matter afresh. For my part I must say that there is much that I find in Lincoln International with which I agree although there are two matters which I would question. Firstly I agree with Mr. Bunting that Mr. Justice Blair-Kerr was not entitled to accept (if he did accept) as an aid to the interpretation of the Order that "the jumbo-jet to San. Francisco is a much more effective way of evading one's creditors than 'the night boat to Canton' ". The passage from Black-Clawson's case which I have quoted makes that clear. One should have regard to the background as it existed in 1873 rather than 1973 when interpreting the rule. Secondly, I think his reference to the "over-sensitive minority in our midst" polemic and that in using it he was concerned to justify the legislation. I am not concerned either to justify or condemn but rather to apply it. That said, I agree, after a careful consideration of the words of 0.44A, that there is no justification for saying that the word "defendant" means a person who is "more or less permanently residing" in the Colony. To interpret the word "leave" as so indicating would be to give it a restricted meaning and had the legislature meant to give it that restricted meaning it could have said so. The Order is designed to ensure that the modes of execution conferred by the Rules on successful plaintiffs will be preserved. For my purposes those conferred by 0.48 and 0.49B are the most relevant.

64. If the "leaving" is likely to result in absence at a time when judgment is to be enforced the judgment must necessarily be obstructed or delayed unless assets sufficient to satisfy the judgment known to the creditor will be within the jurisdiction or otherwise available when the judgment is to be enforced. The whole purpose of 0.48 and 0.49B is to enable a judgment creditor to discover such assets as are available to satisfy the judgment and the personal presence of the debtor is essential to the operation of these two Orders. It is perhaps as Mr. Murray points out not without significance that 0.44A speaks of the defendant being about to leave "the jurisdiction" rather than the Colony. This may be taken as an indication that the Order is concerned to see that a person who has become subject to an invoked jurisdiction of our Courts should remain so subject for so long as the Court exercising the jurisdiction requires.

65. For these reasons I would agree with Blair-Kerr S.P.J. in his conclusion that the defendant's residence in the Colony need not be permanent nor quasi permanent. I have already indicated that I consider that there was on the evidence taken in its entirety quite sufficient indication that if the appellant had left the jurisdiction it was likely that execution would be obstructed or delayed.

66. I would agree with Nos. 5 and 6 but No.7 of the "principles" abstracted by Huggins J. from Moran's case needs more qualification. I would agree that if the defendant offers in lieu of bail to make a deposit the Court has a discretion as to the amount of the deposit it may accept. This must be so because in deciding whether or not to accept such a deposit the Court has to consider whether it is "sufficient". Whether or not it is sufficient deponds on the Court's assessment of the strength of the plaintiff's case and of the amount which he is likely to recover. It is otherwise where sureties are involved. The surety or sureties do not undertake to pay any specified sum. They must to satisfy Rule 3(3) undertake to pay any sum that may be adjuged. There is as I see it no room for discretion here. However their liability only arises on failure of the defendant to appear. Once he does appear after judgment their liability ceases. This is only to be expected for he by appearance subjects himself to the jurisdiction the Order seeks to protect. I therefore consider that when Kempster J. indicated his willingness to accept an offer of U.S.$50,000 this was unexceptionable. What a judge has to do is to accept or reject an offer by the defendant to deposit a sum "sufficient" in the opinion of the judge and in arriving at that decision he is constrained only to see that it is in his view sufficient. This is perhaps academic since I understand that no such offer has as yet been made.

67. For these reasons I would dismiss this appeal and the cross-appeal.

(1)    4 H.L.C. 815

(2)    (1910) 5 H.K.L.R. 216

(3)    (1960) H.K.L.R. 223

(4)    (1973) H.K.L.R. 299

(5)    (1976) H.K.L.R. 544 at 552

(6)    (1963) H.K.L.R. 930

(7)    19 Ch. D. 311

Representation:

Michael Bunting (Wilkinson & Grist) for Appellant (Defendant).

Roderick Murray (Johnson, Stokes & Master) for Respondent (Plaintiff).