HAROON HASAN v. CHU CHUNG KWAN BRIAN t/a Wai Tat Co.

1995 No. MP 364

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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REASONS FOR DECISION

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1. On the 12th June this year I made an order that the committal order made on the 3rd March 1995 against Mr Haroon Hasan (whom I shall refer to as the Applicant) be discharged and that unless application be made to me the costs of the proceedings on the application and at the discharge be to the Applicant on an indemnity basis. On the 6th September such application was made by Chu Chung Kwan Brian, trading as Wai Tat Company (whom I shall refer to as the Respondent). I dismissed the Respondent's application and said I would give brief reasons for so doing, which I now do. I apologise to the parties for not doing so before.

2. The original committal order was made in the Applicant's absence. Although strictly speaking it might be said not to have been made ex parte, in my view if a party seeks committal of another when he is not in Court it behoves him to bring all relevant matters to the Court's attention. The party seeking a committal order is after all not in a very different position from that of the prosecution in a criminal case. It is the duty of the prosecution to bring to the Court's attention all relevant matters whether it helps the prosecution case or not.

3. The committal Order was sought in this case because the Applicant had failed to attend an examination in respect of a debt owing to the Respondent by the Applicant's company. The debt was substantial but not overly large. It was US$78,5000 plus, of course, costs and interest which was also accruing. The Applicant had been handling the matter himself and did not have lawyers acting for him. He had been in contact with the Respondent and indeed part of the judgment debt against the Company had already been paid by the Applicant personally. On receiving the notice to attend for examination the Applicant had paid some more money and says he thought the Respondent was satisfied and that things were settled on the basis that the Applicant would be paying money as and when he could get it together. When the committal papers were served on the 16th February the Applicant again contacted the Respondent who then agreed to accept over $100,000 which was paid within the next few days.

4. By the 1st March the debt had been reduced to US$20,000 and there was a letter of that date from the Respondent confirming that.

5. Had I been told of these matters on the 3rd March it would have been very material to my decision as to any order I made. Instead I was left with the impression that the Applicant had flagrantly breached the Order to attend the examination and deliberately not attended the committal proceedings. The truth is that he had been paying off the debt that was not his but that of his company. Had I known that I might well have realised that he had been under a misapprehension and made an order that he attend rather than one of committal.

6. I have considered the affirmation now filed by the Respondent. Unfortunately it does not really assist the Respondent. The failure to inform the Court as to the payments and acceptance thereof was put down to pressure of business whilst the Respondent was away from Hong Kong. That is not satisfactory. The liberty of the subject is of prime importance. Those who wish to deprive others of their liberty must take all necessary steps to see that the full facts are brought to the attention of the Court. If they do not do so the party aggrieved should in my view receive his costs on an indemnity basis.