LAW WAN TUNG v. DIRECTOR OF LEGAL AID

HCAL 122/2015

[2018] HKCFI 1302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 122 OF 2015

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DECISION

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1.  This is the application by the Applicant for an order that the Charging Order: Notice to Show Cause be discharged or varied.

2.  The Applicant failed in her attempt to apply for leave to Judicial Review against the Respondent.  She was ordered to pay the Respondent’s costs summarily assessed at HK$200,000 on 5 February 2016.  It is commonplace that the Applicant did not effect any payment.  The Respondent applied for a Charging Order: Notice to Show Cause.  The application was supported by an Affirmation of Cheung Yue Kwan Yvonne dated 11 January 2018 ("1^st Affirmation").  The 1^st Affirmation had 3 exhibits, which include one Judgment by Mr Recorder Stewart Wong, SC dated 28 December 2017 ("Judgment").

3.  Paragraph 20(3) of the Judgment provides that:-

"(3) A bank statement with Standard Chartered Bank dated 2 April 2015, showing that as at that date the 2^nd defendant had HK$243.78 on deposit but owed a total of HK$136,996.06 in relation to three credit cards.  Thus the net position was that she was in deficit of HK$136,752.28 as at 2 April 2015.  The position was basically the same in subsequent months: the sum on deposit remained the same, and with the net deficit being HK$135,435.09, HK$134,148.18, HK$133,976.37 and HK$137,740.60 on 2 May 2015, 3 June 2015, 3 July 2015 and 3 August 2015 respectively."

There is no dispute that the 2^nd defendant mentioned in the Judgment is the Applicant in this action.

4.  The main objection by the Applicant appears at Paragraph 6 of the 1^st Affirmation, which was used in support of the application for Charging Order: Notice to Show Cause made on an ex parte basis, which states that:

"To the best of my information, I verily believe that Erwiana Sulistyaningsih, the Plaintiff in DCPI 569/2015 who had been awarded damages at HK$809,430.03 plus interest and costs before HH Judge Winnie Tsui, is the debtor of the Applicant.  The Respondent has no knowledge of any other creditors or creditors of the Applicant whom the Respondent can identify."

5.  The Applicant through her solicitor made 2 Affirmations in this application.  He stated that the Applicant was indebted to Standard Chartered Bank for 3 credit cards in 2015 as reflected in the Judgment.  The Applicant was incarcerated since February 2015 and she had no means to repay the credit cards debts.  Therefore, there was material non-disclosure in the 1^st Affirmation and the Charging Order: Notice to Show Cause should be discharged.  Ms Wong, who appeared on behalf of the Applicant, cited to me the Hong Kong Civil Procedure (2018) Vol. 1 at §50/9A/23:-

"The judgment creditor is required by r.1(3)(b) to state the name of any creditor of the debtor whom he (the applicant) can identify.  In such case, the court has power on making the order nisi to direct service of copies of the order and of the affidavit in support on any other creditor of the judgment debtor or indeed on any other interested persons as may be appropriate in the circumstances.  Such other creditor or other interested person is entitled to attend and to be heard on the hearing of the further consideration of the matter, when the court will be considering whether or not to make the order absolute."

6.  Further, Ms Wong quoted §29/1/51 of the Hong Kong Civil Procedure (2018) Vol. 1 which states that it is trite law that in making ex parte applications, the applicant bears the duty of full and frank disclosure.  On any ex parte application, the applicant must proceed “with the highest good faith”.  An order obtained on ex parte basis will be discharged without consideration of the merits if it was obtained without full disclosure, and material non-disclosure is a good reason for discharge of an ex parte application.

7.  Although the Applicant has been very critical as to the contents of the 1^st Affirmation, the Applicant's 2 affirmations were made by her solicitor, not by herself.  None of these 2 Affirmations disclosed the Applicant's financial status as on the date when the 1^st Affirmation was made.  The Applicant did not disclose on the 2 affirmations made by her solicitor whether the Applicant’s debts have been outstanding or repaid, and if the former, how much.  The Applicant did not make out a case that the Respondent was wrong on facts in the 1^st Affirmation.  

8.  If the 1^st Affirmation was made in 2015, then certainly the objection would be loud and clear as the Judgment clearly showed that the Applicant was indebted up to August 2015.  However, the 1^st Affirmation was made on 11 January 2018.   The Court has not been informed by the Applicant’s solicitor of the number of the Applicant’s creditors, and the amount of the Applicant’s indebtedness as of the date of making the 1^st Affirmation.  For the deponent of the 1^st Affirmation to state that she could not identify other creditors of the Applicant could not be said to be material non-disclosure.  The 1^st Affirmation might have failed to mention that the Applicant did owe money to a bank more than 2.5 years ago before the 1^st Affirmation was made, but in my view the time gap has made such complaint irrelevant.  The Applicant also failed to show what prejudice could have caused to the Applicant.

9.  Ms Wong urged me to consider that once material non-disclosure is found on the affirmation in support of the ex parte application for the Charging Order: Notice to Show Cause, the order made thereunder should be discharged.  I find that the Applicant failed to demonstrate to me that there is any material non-disclosure.  The contents of the 1^st Affirmation can be drafted with more information, and its meaning can be more precise.  However, in my finding I do not consider that it amounts to material non-disclosure.

10.  Based on my findings as above, I do not think I would need to deal with Ms Wong’s proposal to discharge and re-grant the Charging Order: Notice to Show Cause.  In passing, I also bear in mind the following passage from Citibank N.A. v. Express Ship Management Services Ltd. [1987] HKLR 1184 at 1191:-

"It would be unfortunate if it were to be thought that in laying down the very sensible and necessary principles concerning disclosure of all material facts, the courts have intended to give active encouragement to undeserving defendants to search ingeniously for facts which a plaintiff might innocently have failed to disclose, in the hope that a judge may consider them to be material and so discharge [the original order]."

11.  I dismiss the Applicant's application.  Costs should normally follow the event.  However, with the benefit of hindsight, the entire application could have been avoided if the 1^st Affirmation is drafted with more precision. I make an Order nisi that there be no order as to costs, to be made absolute within 14 days.  

12.  The parties have agreed that upon dealing with this application, the proper course for me to take is to seize the matter and deal with the Charging Order: Notice to Show Cause which has been adjourned by Master K W Wong’s Order of 16 March 2018.  I make an order that the Charging Order: Notice to Show Cause dated 24 January 2018 as amended by Order made by Master M. Lam on 15 May 2018 be made absolute, and costs thereof be summarily assessed at $9,100.

13.  I thank Ms Wong and Ms Cheung for their able assistance.