XCHRX CEDAR BASE ELECTRONIC LTD. v. KAM YUEN ELECTRONICS PLASTIC LTD.

HCA 755/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. A755 OF 1999

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D E C I S I O N

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1. These are proceedings instituted by Cedar Base Electronic Ltd. for Orders of Sequestration and of Committal against a Company and against one of its directors, Mr. Wong Chak Ka.

2. On 13 May 1999, I had given an Order to the effect that there should be leave to the Respondents, i.e. the Company and Mr. Wong, to file and serve an affirmation in opposition to the motion within 7 days of the date of the Order, and that there should be leave for the Applicant, i.e. Cedar Base, to file and serve an affirmation in reply within 7 days thereafter.

3. The affirmation of Wong Chak Ka was filed on 31 May 1999. It was duly served on the Applicant. However, nothing further was heard from the Applicant until the filing of a summons on 26 November 1999 which seeks leave to file and serve an affirmation in reply to Mr. Wong's affirmation out of time.

4. I should note that the delay is in the region of 7 to 8 months. There is an affidavit of the General Manger of the Plaintiff Cedar Base which shows that since March of this year, the Plaintiff had been preparing for flotation, and according to this affirmation and to the Applicant's solicitors today, the Plaintiff had utilized all its available resources, both in terms of finance and manpower, as a matter of priority to ensure the timely completion of its listing, and that it was only after the Plaintiff was listed in mid-October 1999 that it further gave instructions to proceed with the motion proceedings which the Plaintiff had left in abeyance since the end of May.

5. In my view, there is no sufficient ground for me to exercise the undoubted discretion which I have to give leave to the Applicant to file its affirmation in reply out of time. These are committal proceedings. There should be no uncertainty hanging over the heads of the persons at the receiving end of this type of proceeding. The grounds which are set out in Stephen Liao's affidavit are totally inadequate to justify the delay in filing an affirmation, not of Mr. Liao, but of a solicitor who had undertaken the execution of the Order.

6. In my view, it is clear that the Court should closely supervise all proceedings in which parties are subjected to a threat of committal and, in my view, and in the exercise of my discretion, I should dismiss the summons with costs.