V CAPITAL LTD v. MARGARET CHIU

HCA 1431/2017

[2021] HKCFI 3133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1431 OF 2017

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DECISION

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Application

1.  This is an application by the judgment creditor to ask the court to imprison the judgment debtor under Section 21A of the High Court Ordinance (Cap 4)  (the “Ordinance”)  and Order 49B rule 1B of the Rules of the High Court (the “RHC”)  (the “Application”).  

Background

2.  By a consent judgment dated 24 September 2018, the judgment debtor was adjudged to pay US$5,127,168.23 with interest to the judgment creditor within 30 days from the date of the judgment (the “Judgment”).  The judgment debtor failed to pay the judgment sum to the judgment creditor. 

3.  On 20 November 2018, the judgment creditor obtained an order to orally examine the judgement debtor under Order 49B of the RHC. 

4.  On 24 December 2018, the court ordered the judgment debtor to produce 12 specific classes of documents in relation to her assets and liabilities not later than 35 days from the date of the order (the “Disclosure Order”), ie by 28 January 2019. 

5.  On 29 January 2019, the judgment debtor through her then solicitors (the “Former Solicitors”)  provided copies of certain documents to the judgment creditor. 

6.  The judgment creditor was of the view that the judgment debtor had not fully complied with the Disclosure Order.  On 3 April 2019, the judgment creditor took out a summons to enforce the Disclosure Order. 

7.  On 15 April 2019, the court ordered the judgment debtor to comply with [2], in particular [2(j)] and [2(l)], of the Disclosure Order within 7 days of that order and to file and serve within 7 days thereafter an affirmation confirming that she had fully complied with the Disclosure Order (the “Compliance Order”). 

8.  Paragraph 2 of the Disclosure Order provides that:

“2. The Judgment Debtor shall as far as possible, supply copies of or make available originals for copying the following documents not later [than] 35 days from the date hereof and shall also produce the following documents at that hearing [ie the examination hearing]:-

a. Passbooks and copies of bank statements for the last 3 years of all bank accounts in Hong Kong and elsewhere (including but not limited to Account Number 172507923833 maintained with the Hongkong and Shanghai Banking Corporation Limited)  in her sole name or jointly with any other person, or of any firm or business which she is sole proprietor or a partner;

b. Accounts for the last 3 years of any business in which she is sole proprietor or a partner or a shareholder in the case of a private company in Hong Kong and elsewhere;

c. Tax returns in Hong Kong and elsewhere and assessments for the last 3 years;

d. All shares and stock certificates held in her name in Hong Kong and elsewhere;

e. The deeds or Land Registry entries in respect of all property in her name or owned beneficially by her;

f. The Deeds or entries into any registration of real property ownership in overseas in respect of all property in her name owned beneficially by her;

g. Registration details of all vehicles owned by or in her name in Hong Kong and elsewhere;

h. Wage or salary slips from her employer for the last 3 years, including but not limited to payment slips in respect of professional fees payable by Far East Investments (China)  Limited to the Judgment Debtor on or before 25 November 2018 for her appointment and engagement as designer and architect consultant of Zhuhai Heng Hong Shopping Mall in Zhuhai, PRC;

i. Passbooks and copies of bank statements for the last 3 years of all bank accounts in Hong Kong and elsewhere in the name of Marspan Limited;

j. All documents relating to or showing the receipt of and/or use of the loan amounts advanced by reason of the following mortgages granted by Marpsan [sic] Limited over the land known as Lot No 2 in D.D. 238 or Lots No 2 and 630 in Demarcation District 238 in Sai Kung, New Territories:-

(1)  Mortgage dated 8 March 2017 amongst Marspan Limited as Mortgagor, the Judgment Debtor as Borrower, and CS Credit Limited as Lender;

(2)  Second Mortgage dated 29 January 2018 amongst Marspan Limited as Mortgagor, the Judgment Debtor as Borrower, and Asset Bridge Development Limited as Lender;

(3)  Third Mortgage dated 1 February 2018 amongst Marspan Limited as Mortgagor, the Judgment Debtor as Borrower, and CS Credit Limited as Lender;

(4)  Fourth Legal Charge dated 4 June 2018 amongst Marspan Limited as Mortgagor, the Judgment Debtor as Borrower, and Jad Wealth (Asia)  Development Limited as Lender; and

(5)  Fifth Mortgage dated 4 June 2018 between Marspan Limited as Mortgagor and E Capital Limited as Lender.

k. All documents relating to and showing the Judgment Debtor’s beneficial interest (if any)  in estate of the late Mr Deacon Chiu Te-kan, JP and/or under any family trust(s);

l.  All documents showing outgoings and liabilities, including copies of any other judgments of a court entered against her name;”

9.  The judgment debtor disclosed no further documents and on 25 April 2019 filed a one-page affirmation (“JD’s 1^st Affirmation”)  consisting of the following two paragraphs:

“1. I am the Defendant herein. This is my first Affirmation filed in these proceedings. I make this Affirmation pursuant to the Order made by Registrar A. Ho on 15^th April 2019 [ie the Compliance Order].

2.  I hereby confirm that I have fully complied with the Disclosure Order made by Master Lui dated 24^th December 2018 [ie the Disclosure Order].”

10.  The examination was thereafter conducted before me on 3 June 2019 (the “Examination Hearing”).  After the Examination Hearing, the judgement creditor indicated that it intended to make the Application.  I gave directions for the parties to file affidavits / affirmations on the Application (the “June 2019 Directions”).  

11.  On 30 August 2019, the judgment creditor filed the 6^th Affidavit of Tsui Ming Lun in support of the Application (“JC’s Supporting Affidavit”). 

12.  The judgment debtor filed her following affirmations in opposition to the Application: 

(1)  her 2^nd affirmation filed on 11 November 2019 (“JD’s 2^nd Affirmation”);

(2)  her 3^rd affirmation filed on 26 May 2020 (“JD’s 3^rd Affirmation”);

(3)  her 4^th affirmation filed on 30 July 2020 (“JD’s 4^th Affirmation”); and

(4)  her 5^th Affirmation filed on 26 January 2021 (“JD”s 5^th Affirmation”).

13.  The hearing of the Application was originally fixed for 21 May 2020.  The practice of the Former Solicitors was intervened by the Hong Kong Law Society on 12 May 2020.  The judgment debtor became unrepresented at the hearing of 21 May 2020.  Upon request of the judgment debtor, I adjourned the hearing to a date to be fixed.  I granted leave for the judgment debtor to file JD’s 3^rd Affirmation and to file a further affidavit or affirmation by 19 June 2020 before the judgment creditor would file and serve its affidavit or affirmation in reply.  I directed that no further affidavit or affirmation might be filed or served by any party for the Application without leave of the court.  I also directed the judgment creditor to send to the judgment debtor and lodge with the court a schedule setting out all the itemised accusations against the judgment debtor under Order 49B rule 1B(1)(b)  and (c)  of the RHC with references to the supporting evidence within 28 days after the judgment creditor filed and served its replying affidavit (the “May 2020 Directions”).

14.  The judgment debtor subsequently filed JD’s 3^rd and 4^th Affirmations on 26 May 2020 and 30 July 2020 respectively.

15.  In JD’s 3^rd and 4^th Affirmations, the judgment debtor blamed the Former Solicitors for her failure to fully comply with the Disclosure Order.  The judgment creditor sought further discovery on audio WhatsApp communications between the judgment debtor and the Former Solicitors and documents referred to in JD’s 3^rd and 4^th Affirmations (the “Discovery Application”).  As directed by the court in the Discovery Application, the judgment debtor filed her 6^th affirmation on 8 January 2021 (“JD’s 6^th Affirmation”). 

16.  On 2 February 2021, the judgment creditor filed its Schedule of Defendant’s Refusal to Disclose (the “Schedule”)  pursuant to the May 2020 Directions.  In the Schedule, the judgment creditor alleged that the judgment debtor still failed to disclose some documents covered by the Disclosure Order as at the date of the Schedule.  The Schedule was subsequently amended pursuant to an order dated 10 March 2021 to delete complaints of outstanding documents against the judgment debtor in respect of her HSBC Premier number 172-507923-833 and her American Express Credit Card number 3771-134197-03000. 

17.  On 26 February 2021, the judgment creditor filed the 8^th Affidavit of Tsui Ming Lun (“JC’s Replying Affidavit”). 

18.  On 16 March 2021, the judgment debtor filed her 7^th Affirmation in response (“JD’s 7^th Affirmation”)  pursuant to leave granted by me at the hearing of the Application on 15 March 2021.  

The judgment creditor’s complaints

19.  In JC’s Supporting Affidavit, the judgment creditor complained that:

(a)  the judgment debtor was able to satisfy the Judgment, wholly or partly (“Ground (a)”); and/or

(b)  the judgment debtor had disposed of her assets with a view to avoiding satisfaction of the Judgment, wholly or partly (“Ground (b)”); and/or

(c)  the judgment debtor had wilfully failed to make a full disclosure as required under the Disclosure Order or to answer questions as provided under Order 49B rule 1A(2)  of the RHC (“Ground (c)”). 

20.  The judgment debtor was adjudged bankrupt on 22 April 2020.  The judgment creditor did not pursue Ground (a)  in the Application.  

21.  The judgment debtor explained in JD’s 4^th Affirmation the disposal of the funds raised by five mortgages (the “Mortgages”)  on the property situated at Demarcation District 238 in Sai Kung (the “Property”)  owned by one of the judgment debtor’s companies, namely Marspan Limited. (See [2(j)] of the Disclosure Order.)  After considering JD’s 4^th Affirmation, Miss Lok for the judgment creditor confirmed at the hearing that the judgment creditor would no longer pursue Ground (b)  in the Application.  

22.  The focus of the Application is thus on Ground (c).  I shall refer to this ground as “the Disclosure Ground”.  

The relevant legal principles

23.  Section 21A of the Ordinance provides that:

“(1)  … … the Court shall have jurisdiction to make such an order for arrest and imprisonment only to enforce, secure or pursue a judgment for the payment of a specified sum of money.

(2)  An order for imprisonment under subsection (1)  shall be for a period not exceeding 3 months.”

24.  The Court has jurisdiction to order the imprisonment of a judgment debtor following an examination conducted under Order 49B of the RHC.  Order 49B, rule 1B(1)  of the RHC provides that: -

“Where the Court is satisfied, following the examination conducted under rule 1A or following an examination conducted under Order 48, that the judgment debtor-

(a)  is able to satisfy the judgment, wholly or partly; or

(b)  has disposed of assets with a view to avoiding satisfaction of the judgment or the liability which is the subject of the judgment, wholly or partly; or

(c)  has wilfully failed to make a full disclosure as required under rule 1A(2)  or at the examination under Order 48, or to answer any question as provided under that rule or Order,

it may, in its discretion, order the imprisonment of the judgment debtor for a period not exceeding 3 months.”

25.  In Ontone Finance Company Limited v Leung Siu Kee and Others (unrep, HCA 408/2011 and HCA 433/2011, 30 April 2015)  Master M Wong had helpfully summarized the relevant legal principles for the Disclosure Ground as follows which I gratefully adopt: 

“12. However, the jurisdiction to imprison a judgment debtor should be exercised with care and circumspection. An imprisonment order can only be made if the judgment creditor (who bears the burden of proof)  proves beyond reasonable doubt that one or more of the grounds in Order 49B, rule 1B(1)  is established. The jurisdiction is analogous to proceedings for contempt, which have been recognised as criminal in nature and must be proved to the criminal standard of proof (see Bank of India v Murjani & Others, CACV 12/1991, 1 May 1991; Honour Finance Co Ltd v Chan Mang, CACV 63/1989, 5 January 1990; Timekeeping Systems Inc v Stephen John Oberlander & Another, HCA 612/2007, 7 August 2009; and Citibank v Chow Tat Sang, HCA 9175/1983, 1 February 1984).

13. It has been emphasised by the courts that even good grounds for suspicion are insufficient to justify an imprisonment order (see Ferryhill International Ltd v Mahmoud Aziz [1997] HKLRD 482; Citibank v Chow Tat Sang, supra).

14. As the criminal standard is applicable, the Court may only draw an inference if: (i)  it is grounded on clear findings of primary fact; (ii)  it is a logical consequence of those facts; and (iii)  it is the only inference that can reasonably be drawn on the basis of those facts (see Winnie Lo v HKSAR (2012)  15 HKCFAR 16).

15. … …

16.  In order to invoke the ground under Order 49B, rule 1B(1)(c)  [of the RHC], non-disclosure must be judged as a whole following the examination rather than on disobedience of any specific order, and the failure to make a full disclosure must be deliberate and intentional, as opposed to accidental or negligent (see Timekeeper Systems, supra; Ferryhill, supra; and Luen Hing Fat Textile Ltd v Lam Shing-chin t/a New Cotton Trading Company [1990] 1 HKLRD 737).”

26.  However, in making an imprisonment order under Order 49B rule 1B(1)  of the RHC, there is no requirement of any finding that there were available assets which were being concealed by the debtor (per Ribeiro PJ in para 4 of Lam Chi Bin Stanley v OSK Asia Futures Limited (FAMV 1/2004, 1 April 2004)). 

27.  The parties have no disputes on jurisdiction of this court to make an order for imprisonment.  The only issue is whether the ground stipulated in Order 49 rule 1B(1)(c)  of the RHC has been made out. 

28.  With the above principles in mind as well as the evidence and submissions before me, I shall see if the Disclosure Ground is established.  If so, whether discretion shall be exercised to imprison the judgment debtor in the circumstances, and if so, for how long? 

The Disclosure Ground

29.  In JC’s Supporting Affidavit, the judgment creditor complained that the judgment debtor failed to fully disclose:

(1)  bank statements or passbooks required by [2(a)] of the Disclosure Order;

(2)  accounts of the judgment debtor’s companies required by [2(b)] of the Disclosure Order;

(3)  wage or salary slips required by [2(h)] of the Disclosure Order;

(4)  receipt and use of funds raised by the Mortgages over the Property and related loan agreements required by [2(j)] of the Disclosure Order. 

30.  In JC’s Supporting Affidavit, the judgment creditor also referred to matters related to Grounds (a)  and (b).  As the judgment creditor no longer pursues these grounds, I do not propose to take those matters further.  

31.  Order 49B rule 1A(2)  of the RHC provides that:

“The judgment debtor shall, at his examination, make a full disclosure of all his assets, liabilities, income and expenditure and of the disposal of any assets or income and shall, subject to the directions of the Court, answer all questions put to him.”

32.  To establish the Disclosure Ground, the judgment creditor has to prove beyond reasonable doubt that the judgment debtor had wilfully failed to make full disclosure as required under Order 49B rule 1A(2)  of the RHC. 

33.  The judgment debtor took issue on the judgment creditor might only rely on the Schedule to prove its case against the judgment debtor.  In JD’s 7^th Affirmation, the judgment debtor stated that: 

“5. I am given to understand and verily believe that, pursuant to the Order made by Master R Lai dated 21 May 2020, the Plaintiff’s Schedule [ie the Schedule] is meant to be “a schedule setting out all the itemized accusations against the Defendant under O.49B, r.1B(1)(b)  and (c)  with references to the supporting evidence”. In other words, the Plaintiff’s Schedule is a self-contained document containing all of the complaints that the Plaintiff relies on (and the only matters upon which the Plaintiff can rely on)  in these committal proceedings. I shall leave it to my legal representatives to make legal submissions in this respect as appropriate.” (Original italic and underline)

34.  Mr Wong SC for the judgment debtor contended that “the [judgment creditor’s] Schedule is meant to set out all of the accusations raised by the [judgment creditor] against the [judgment debtor] in these proceedings. … … such a schedule must clearly set out the charge against the [judgment debtor] and the case that the [judgment debtor] has to meet.” (original emphasis)  ([22] of Skeleton Submissions of the Defendant)  

35.  Mr Wong SC submitted that the Schedule was equivalent to a “Charge Sheet” in criminal prosecution.  With respect, such contention is misconceived.  The May 2020 Directions expressly provided for the judgment creditor to prepare the Schedule after filing of its replying affidavit / affirmation.  The May 2020 Directions also provided that no further affidavit or affirmation should be filed or served by any party in the Application without leave of the court after filing of the judgment creditor’s replying affidavit / affirmation.  The court did not require nor expect the judgment debtor to respond to the Schedule.  The court did not intend the Schedule to play the role of a “Charge Sheet” in criminal prosecution.  The Schedule was only meant to be a tool to assist the parties and the court in dealing with the Application.  It itemized in a summary form the various complaints of the judgment creditor but did not mean to replace the affidavit / affirmation evidence filed by the parties for the Application.  The evidence of the parties for the Application should have been contained in the various affidavits and affirmations filed and served by the parties for the Application.  The court does not solely rely on the Schedule to deal with the Application.  

36.  Mr Wong SC further contended that the judgment creditor did not seek to cross examine the judgment debtor for the Application on the alleged failure to disclose.  As such, the court did not have the opportunities to hear the judgment debtor’s explanation to the judgment creditor’s complaint against her and thus would not have evidence to find the judgment creditor’s complaint being established beyond reasonable doubt. 

37.  Miss Lok rightfully referred to various parts of the transcripts of the Examination Hearing to show that she had put her case on failure to disclose to the judgment debtor on various occasions during the examination and the judgment debtor had been given opportunities to explain her such failure.  The judgment debtor had repeatedly stated during the examination that she disagreed with the case of failure to disclose put to her by Miss Lok. (See hearing bundle D p32 at letter H, p36 at letter Q, p44 at letter F, and p48 at letters D-E.)  In fact, during the examination the judgment debtor had put forward her explanations for her failure to disclose some documents such as her credit card statements and bank statements when she said that:

“As I did not know the credit-card statements were relevant.” (p31 of hearing bundle D at letter A)

“We were not experienced in this, and we didn’t know that credit-card statements is very relevant to this. I understand … …” (p31 of hearing bundle D at letters M-N)

“Well, I was just saying that at that time, I may not have those documents, and I would require probably to go back to all these finance companies and ask them to produce, and there at that time, I swear on oath that that was all I had.” (p44 of hearing bundle D at letters B-C)

“I had the impression that one year is sufficient. Therefore, it could be … …” (p48 of hearing bundle D at letter B)

38.  Miss Lok further submitted that the judgment debtor had given her evidence in respect of the Application by affirmations on oath.  The court might test her evidence against the judgment debtor’s own evidence and other undisputed or non-disputable evidence. 

39.  I agree with Miss Lok that it is not mandatory that application under Order 49B rule 1B has to be proved by further oral evidence after the Examination Hearing.  Provided that the judgment debtor has been given reasonable opportunities to adduce evidence to answer the accusations against her, the court can base on evidence adduced before the court (including affidavits / affirmations filed and oral evidence available from the Examination Hearing)  to rule on the Application. 

Whether the judgment debtor had failed to make full disclosure?

40.  Miss Lok submitted that the purported disclosure made by the judgment debtor prior to the Examination Hearing was on its face deficient by comparing it against the express provisions of the Disclosure Order.  She further submitted that the judgment debtor had been given plenty of opportunities since 2018 to give full disclosure prior to the Examination Hearing.  In JD’s 1^st Affirmation, the judgment debtor confirmed under oath that she had fully complied with the Disclosure Order.  Yet in JD’s 2^nd Affirmation, the judgment debtor admitted that she failed to give full disclosure.  Miss Lok submitted that based on the judgment debtor’s own admission alone, it was proved beyond doubt that the judgment debtor had failed to make a full disclosure as required under Order 49B rule 1A(2)  of the RHC. 

41.  In JD’s 2^nd Affirmation, the judgment debtor admitted that she had not fully complied with the Disclosure Order.  She stated that:

“3. I would firstly like to apologize to this Honourable Court for any documents I have inadvertently failed to disclose pursuant to the Disclosure Order. Any such non-disclosure is caused solely by inadvertence, instead of any wilfulness or intention on my part.”

42.  The judgment debtor then stated that she was instructing her solicitors (ie the Former Solicitors)  to obtain further documents for her and undertook to disclose such further documents promptly.  She “pray to be given another chance to comply with the same [ie the Disclosure Order].” ([14] of JD’s 2^nd Affirmation) 

43.  In JD’s 3^rd Affirmation, the judgment debtor stated that:

“7. … … Upon reading the 6^th Affidavit of Tsui Ming Lun [ie JC’s Supporting Affidavit] in the bundles, I tried my best to dig out all the requested documents. To show that I have no intention to hide the documents as requested under the disclosure order, I attach here a list of all bank statements I currently have and a copy of these documents (Exhibit 4). … …”

44.  In JD’s 4^th Affirmation, the judgment debtor stated that:

“31. I humbly ask this Honourable Court to excuse my inadvertent failure to disclose certain documents to the Plaintiff [ie the judgment creditor] in the past due to the above misunderstanding and negligent acts of my previous legal team, … …”

45.  The judgment debtor then set out in JD’s 4^th Affirmation her various efforts taken since 9 June 2019 to obtain further documents required to be disclosed under the Disclosure Order and exhibited those further documents to JD’s 4^th Affirmation. 

46.  In JD’s 5^th Affirmation, the judgment debtor for the first time disclosed that her interest in the Property was subject to various claims by her former husbands on top of the Mortgages. 

47.  Miss Lok criticized the judgment debtor for failing to disclose documents relating to her liabilities in accordance with [2(l)] of the Disclosure Order.  

48.  The judgment debtor admitted under oath that she had not fully complied with the Disclosure Order.  She even admitted that she “tried her best to dig out all the requested documents” only after reading JC’s Supporting Affidavit (see [43] above).  In [8(ii)] of JD’s 7^th Affirmation, the judgment debtor stated that: she had “striven to make the fullest and most complete disclosure possible by way of inter alia my 3^rd Affirmation dated 20 May 2020 (“my 3^rd Affirmation”)  and my 4^th Affirmation [ie JD’s 3^rd and 4^th Affirmations].”  The judgment debtor exhibited about 650 pages of bank statements as “Exhibit 4” to JD’s 3^rd Affirmation (pp 495 to 1140 of Bundles C3 to C6 of the Hearing Bundles).  She also exhibited about 32 pages of documents relating to the Mortgages as “Exhibit 5” to JD’s 3^rd Affirmation.  More than 1,000 pages of documents were exhibited to JD’s 4^th Affirmation.  All these disclosures were made after the Examination Hearing. 

49.  At the hearing for the Compliance Order, the judgment debtor was represented by Miss V Chan of counsel who told the court that the judgment debtor had further documents to disclose and yet by JD’s 1^st Affirmation the judgment debtor confirmed under oath that she had fully complied with the Disclosure Order without disclosing any further documents.  However, after the judgment creditor took out the Application, the judgment debtor disclosed more than 1,600 pages of further documents which should have been disclosed before the Examination Hearing under the Disclosure Order.  Details have been set out in the Schedule. 

50.  Mr Wong SC conceded at the hearing that the judgment debtor had breached the Disclosure Order and the Compliance Order.  He only contended that such breaches were not intentional.  

51.  From the above, there is no doubt whatsoever that the judgment debtor had failed to make a full disclosure as required under Order 49B rule 1A(2)  of the RHC.  The only issue is whether the non-disclosure was “wilful”. 

Whether the judgment debtor failed to disclose wilfully?

52.  Mr Wong SC contended that the judgment creditor had not proved beyond reasonable doubt that the judgment debtor’s failure to disclose was wilfully. 

53.  Miss Lok relied on Arlidge, Eady & Smith on Contempt (5^th edition)  and Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190 to submit that “wilful” means neither casual, accidental or unintentional. 

54.  She further referred to Kao, Lee & Yip v Koo Hoi Yan (2009)  12 HKCFAR 830 to submit that liability did not depend on contumacious intent, that is, an intention to disobey the order or otherwise interfere with or impede the due administration of justice.  It was also immaterial that the breach of the court order was committed in reliance on a third party’s advice, even legal advice.  She submitted that a defendant who “did his best” or did what was his “normal practice” that he erroneously considered to be adequate did not show that the failure to comply with court order was casual or unintentional or accidental. 

55.  The judgment debtor’s case was that she relied on her secretary to keep and store her accounts and records, but her secretary was sick in January and February 2019.  In the Examination Hearing, the judgment debtor claimed that her secretary had cancer and were hospitalized for months.  

56.  The judgment debtor further alleged that she relied on the Former Solicitors to “sort out” the bank statements and the Former Solicitors advised her that they would produce bank statements for one year and it was adequate to sign the letters of compliance of completion of disclosure.  However, the judgment debtor could not even remember who of the Former Solicitors had given her such advice. (See p48 of hearing bundle D at letter C.)

57.  The judgment debtor also alleged that she suffered from depression since April 2012 which made her lose her ability to organize her personal and financial affairs. 

58.  Miss Lok submitted that none of the explanations put forth by the judgment debtor showed that her failure to give full disclosure was “casual or accidental or unintentional”.  She submitted that medical records produced by the judgment debtor at most showed that her secretary was suffering from appendicitis from 6 to 22 February 2019 whereas the Disclosure Order was made on 24 December 2018, ie about two months before the alleged sickness of the judgment debtor’s secretary.  In any event, it was the duty of the judgment debtor, not that of her secretary, to comply with the court orders and disclosure obligations. 

59.  Miss Lok contended that it was inconceivable that the Former Solicitors would advise the judgment debtor that disclosure of bank statements for one year would be sufficient as this was contrary to the express requirements of the Disclosure Order. 

60.  Miss Lok referred to the Kao, Lee & Yip case (supra) to submit that it was irrelevant that the judgment debtor acted on erroneous advice in failing to make full disclosure.  Further, liability did not depend on contumacious intent.  Miss Lok contended that the judgment debtor’s bare allegation of “a lack of good grasp” on her affairs did not assist her.  A debtor who “did his best” or did what was his “normal practice” that he erroneously considered to be adequate did not show that the failure to comply with court order was casual or unintentional or accidental. 

61.  Miss Lok submitted that the judgment creditor only needed to prove that the judgment debtor’s failure to disclose was intentional (not accidental)  and she knew all the facts which made it a breach of the Disclosure Order.  Miss Lok further submitted that liability did not depend on an intention to disobey the Disclosure Order or otherwise interfere with or impede the due administration of justice.  She contended that negligence was not a defence and the judgment debtor’s own irresponsible attitude causing the failure was also no excuse. 

62.  The judgment debtor explained in JD’s 7^th Affirmation that: “given the vast volume of documents involved, there may have been inadvertent errors or omissions in the process of checking the documents in my records or possession, retrieving documents from third parties, and disclosing all the same to the Plaintiff.” ([8(iii)] of JD’s 7^th Affirmation) 

63.  To summarize, the judgment debtor put forward three explanations for her failure to disclose being inadvertent, namely (1)  sickness of her secretary; (2)  wrong advice from the Former Solicitors; and (3)  her own depression problem. 

Sickness of the judgment debtor’s secretary

64.  The judgment debtor alleged in JD’s 2^nd Affirmation that she had the habit of over-reliance on her secretary when it came to keeping and storing all her accounts, documents, records, books and files.  She alleged her secretary fell seriously ill around the periods of January and February 2019.  She produced medical certificates showing that her secretary was hospitalized from 6 to 22 February 2019 for acute appendicitis with gangrene with sick leave until 28 February 2019.  The judgment debtor said that at approximately the same time, she was obliged under the Disclosure Order to disclose documents.  This is not right.  The judgment debtor’s secretary suffered “acute” appendicitis on 6 February 2019.  No evidence was adduced to show that the judgment debtor’s secretary’s works prior to February 2019 were affected.  The Disclosure Order was made on 24 December 2018 and the Former Solicitors sent disclosed documents to the judgment creditor’s solicitors on 29 January 2019.  All these happened prior to February 2019. 

65.  Pursuant to the Compliance Order, the judgment debtor had to fully comply with the Disclosure Order in April 2019 and to file affirmation to confirm compliance.  The judgment debtor made no further disclosure and filed JD’s 1^st Affirmation on 25 April 2019 to confirm full compliance of the Disclosure Order.  All these happened about two months after the judgment debtor’s secretary had been discharged from hospital.

66.  As such, the sickness of the judgment debtor’s secretary could not have caused the judgment debtor’s failure to disclose.  If the judgment debtor was unable to comply with the Disclosure Order and/or the Compliance Order because of the sickness of her secretary, she should have applied to the court for time extension to comply with the order(s).  No such application had been made by the judgment debtor despite the fact that she was legally represented at the material times.  

67.  I do not see how the alleged sickness of the judgment debtor’s secretary would have any implication on the judgment debtor discharging her obligations under the Disclosure Order and/or the Compliance Order. 

68.  Miss Lok rightly pointed out that never for once did the judgment debtor tell the court that she had any difficulty in complying with her disclosure obligations prior to the Examination Hearing.  

69.  I agree with Miss Lok that it was the personal obligations of the judgment debtor, not that of her secretary, to comply with the Disclosure Order and the Compliance Order.  In the premise, I reject the judgment debtor’s explanation for failure to disclose relying on the sickness of her secretary.  I find this a bad excuse. 

Advice of the Former Solicitors

70.  The judgment debtor stated in JD’s 2^nd Affirmation that:

“8. We have produced all bank statements since 2016 and send to lawyer’s office for them to sort out according to court order. In this circumstances, my lawyer [ie the Former Solicitors] has advised me that they would produce 1 year of bank statements and told me it is adequate to sign the letters of compliance of completion.”

71.  The judgment debtor alleged that she was advised by the Former Solicitors that producing bank statements for one year was sufficient to satisfy the Disclosure Order and the Compliance Order.  Such advice if given was obviously wrong as it contradicted the express provisions of the Disclosure Order.  Miss Lok criticized the judgment debtor making such grave allegation against her professional advisors and yet adducing no evidence to support such serious allegation.  As pointed out in [56] above, the judgment debtor could not even tell who of the Former Solicitors had given her such advice. 

72.  Counsel acting for the judgment debtor at the hearing for the Compliance Order expressly told the court that the judgment debtor had further documents to disclose under the Disclosure Order.  The court had also confirmed with the judgment debtor’s then counsel at the hearing that the then legal advisors of the judgment debtor had explained to the judgment debtor her obligations under the Disclosure Order and the serious consequences for non-compliance. 

73.  Taking into account the facts that after the judgment debtor made disclosure in January 2019, the judgment creditor’s solicitors had made various complaints by letters to the Former Solicitors on non-compliance of the Disclosure Order and taken out the application for the Compliance Order, I agree with Miss Lok that in such circumstances it was inconceivable that the Former Solicitors would have advised the judgment debtor that disclosure of bank statements for one year would be sufficient as this was contrary to the express requirements of the Disclosure Order. 

74.  In JD’s 3^rd Affirmation, the judgment debtor came up with another story.  She made the following more serious accusations against the Former Solicitors in JD’s 3^rd Affirmation: 

“2. SW Tai & Co. [ie the Former Solicitors] had been representing me in this case where I had always acted upon the advice of the solicitor Stephen Tai on the conduct of the proceedings. I genuinely believe that he had been representing me and handling the present case. Therefore I was not aware of the court order for disclosure and upcoming hearing. I also do not understand what is required to produce and when to produce. … …” (Emphasis added)

“6. … … In reply to the 6^th Affidavit of Tsui Ming Lun [ie JC’s Supporting Affidavit], SW Tai & Co. did not ask me to produce further documents but only advised me to sign my 2^nd Affirmation in November [ie JD’s 2^nd Affirmation]. … …”

75.  In JD’s 4^th Affirmation, the judgment debtor put forward yet another story as follows:

“22. In fact, I was not even aware of the exact documents that I was required to produce (and when)  under the Master Lui Order [ie the Disclosure Order], until I received an email from Mr. Ryan Chan (counsel from the Plaintiff [sic] at the time)  at 1:04 pm on 28 January 2019, informing me that I had to produce the 12 classes of documents by the deadline of 4:00 pm that day. I used my best endeavours during this short timeframe to put together all the documents I had at hand (including all the original copies of bank statements issued to me for the past 3 years and in my possession at the time)  and delivered those documents to SWT [ie the Former Solicitors] to be provided to the Plaintiff [ie the judgment creditor]. … …” (Emphasis added)

76.  In JD’s 4^th Affirmation, the judgment debtor made the following further serious accusations against the Former Solicitors:

“23. The next day (i.e. 29 January 2019), the bundles of documents that I provided to SWT [ie the Former Solicitors] were delivered to the Plaintiff [ie the judgment creditor].

24. However, I was not informed and/or advised by SWT that further disclosure was required. In this connections, SWT did not inform me and/or provide me with a copy of the letter from the Plaintiff dated 1 March 2019 which alleged that I was in continuous breach of Master Lui Order [ie the Disclosure Order].

25. SWT also failed to explained and/or render advice on the contents of the Order made by Master Ho on 15 April 2019 [ie the Compliance Order], which I now understand had required me to comply with the Master Lui Order and to file an affirmation confirming full compliance. I never received a copy of this Order from SWT by email or otherwise.

26. Without being aware of and/or understanding the contents of the said Order by Master Ho, I signed my 1^st Affirmation [ie JD’s 1^st Affirmation] upon the request of SWT, apparently confirming full compliance with the Master Lui Order. SWT never requested and/or advised me to provide further documents or information for disclosure to the Plaintiff prior to the signing of my 1^st Affirmation.

27.  I was not asked and/or advised to produce further documents for the oral examination held on 3 June 2019 either.”  

77.  In JD’s 3^rd Affirmation, the judgment debtor said that she had complained against the Former Solicitors to the Hong Kong Law Society.  She exhibited a copy of her complaint as “Exhibit 1”.  The complaints of the judgment debtor against the Former Solicitors in so far as relevant to the Application were as follows:

“III. Referring to the Discovery Order case HCA 1431/2017 I have sent all my documents to SW Tai [ie the Former Solicitors] in Jan 2019. But they only send in one year and asked me to sign that all disclosure was completed.

I was acted upon the advice of SW Tai to sign this document. Based on the above V Capital [ie the judgment creditor] had instigated committal proceeding against me for intentionally disposal of asset and non-disclosure of assets.

The consequence is very serious with their negligence that I suffered bankruptcy and probably imprisonment.”

78.  In the aforesaid complaint, the judgment debtor repeated her allegations against the Former Solicitors.  In view of the judgment debtor’s accusations against the Former Solicitors, the judgment creditor had taken out the Discovery Application to require the judgment debtor to disclose audio WhatsApp communications between the judgment debtor and the Former Solicitors and other documents referred to in JD’s 3^rd and 4^th Affirmations said to be in support of the judgment debtor’s accusations against the Former Solicitors. 

79.  Pursuant to an order made by the court on 11 December 2020, the judgment debtor filed and served JD’s 6^th Affirmation in answer to the Discovery Application.  In the 6^th Affirmation, the judgment debtor produced her audio WhatsApp communications with the Former Solicitors. 

80.  In [18] of JC’s Replying Affidavit, the judgment creditor extracted the audio WhatsApp messages disclosed in JD’s 6^th Affirmation relevant to the Application.  I do not propose to reproduce those extracts here.  Suffice it to say that I agree to the following observation of the judgment creditor set out in [19] of JC’s Replying Affidavit: 

“19. As seen from the above [ie extracts set out in [18]], there is no evidence which supports the Defendant’s [ie the judgment debtor’s] present allegation that SWT [ie the Former Solicitors] advised her to disclose only 1 year of bank statements and that would be full compliance of the Disclosure Order. … …”

81.  The audio WhatsApp messages only showed that the Former Solicitors had asked the judgment debtor to sign JD’s 1^st Affirmation.  The communications did not show that the Former Solicitors had advised the judgment debtor that disclosing bank statements for one year was sufficient for compliance with the Disclosure Order.  The judgment debtor’s case was directly contradicted by the email dated 28 January 2019 sent by Mr Ryan Chan of counsel (ie counsel previously acted for the judgment debtor)  to the judgment debtor and exhibited as “MC-7” to JD’s 4^th Affirmation.  In the attachment to that email Mr Chan set out a list of documents required to be disclosed by the judgment debtors.  The first item being: “All bank statements and passbooks for the last 3 years of all bank accounts” (emphasis added)  in the sole name of the judgment debtor and in the name of companies owned by the judgment debtor.  

82.  Paragraph 2(a)  of the Disclosure Order clearly and expressly required the judgment debtor to disclose passbooks and copies of bank statements for the last 3 years of all bank accounts in Hong Kong and elsewhere in the judgment debtor’s sole name or jointly with any other person. There was no room for misunderstanding. 

83.  What the judgment debtor stated in JD’s 3^rd and 4^th Affirmations directly contradicted what she had stated in JD’s 1^st Affirmation.  Bearing in mind that the judgment debtor is a law school graduate holding a law degree from Buckingham University in England and she is fluent in English when answering questions at the Examination Hearing, I do not accept that she did not understand the content of JD’s 1^st Affirmation, which only consisted of two short paragraphs, before she affirmed the same. 

84.  What the judgment debtor said in JD’s 4^th Affirmation contradicted what she said in JD’s 2^nd and 3^rd Affirmations.  In JD’s 4^th Affirmation, the judgment debtor admitted that latest by 28 January 2019 she knew that to fully comply with the Disclosure Order, she had to disclose 12 classes of documents and bank statements for 3 years.  She said that she put together “all documents she had at hand” and bank statements “in her possession” and sent them to the Former Solicitors to be forward to the judgment creditor.  The judgment debtor clearly knew as at 28 January 2019 that she had not disclosed all the documents required to be disclosed under the Disclosure Order.  Yet without making further disclosure, the judgment debtor stated under oath on 25 April 2019 in JD’s 1^st Affirmation that she had fully complied with the Disclosure Order. 

85.  The judgment debtor’s failure to disclose could hardly be described as inadvertent.  It was far from casual, accidental or unintentional.  

86.  As held in the Kao, Lee & Yip case (supra), even if the Former Solicitors had given such erroneous advice, it was no excuse for non-compliance of the Disclosure Order.  Furthermore, put the judgment debtor’s case to the highest, her complaint against the Former Solicitors only related to failure to disclose bank statements.  It was no explanation for failure to disclose other documents required under the Disclosure Order. 

87.  In the premise, I also reject the judgment debtor’s explanation for failure to disclose relying on alleged erroneous advice given by the Former Solicitors. 

The judgment debtor’s depression

88.  The judgment debtor also relied on her depression diagnosed in 2012 to allege that she did not have a good grasp of her affairs to comply with the Disclosure Order. 

89.  In the Examination Hearing, the judgment debtor disclosed that she had been engaging in various business projects of substantial value.  Miss Lok submitted that the judgment debtor never alleged that she had lost her mental capacity to act or make decisions.  In fact, she had arranged for the Mortgages from March 2017 to June 2018 raising over $97 million.  She had the ability to instructed solicitors and was represented by solicitors and counsel at the material times. 

90.  I agree with Miss Lok that the judgment debtor was plainly capable of handling her own affairs and there was no evidence to show that she lacked the mental capacity to comply with her disclosure obligations under the Disclosure Order. 

91.  The judgment debtor stated in JD’s 2^nd Affirmation which was affirmed on 11 November 2019, ie more than 11 months after the Disclosure Order was made and more than 6 months after she affirmed JD’s 1^st Affirmation, that:

“12. I have already instructed my solicitors to do their utmost to ensure that all disclosure is completed before the substantive hearing of the Committal Summons. In that regards, I have already instructed them to obtain copies of all the documents from the various institutions. I am informed and I verily believe that they are currently doing so.”

92.  It can be seen that the judgment debtor did not take the Disclosure Order and the Compliance Order seriously.  She only instructed her solicitors to obtain documents from the various institutions after the Application was taken out against her after the Examination Hearing. This also shows that her alleged illness did not affect her ability to give instructions to her solicitors to assist her to comply with the Disclosure Order.  The judgment debtor failed to comply with the Disclosure Order because she did not give instructions to her solicitors to obtain documents for her until after the judgment creditor took out the Application.  Such failure to disclose was far from casual, accidental or unintentional. 

93.  I reject the judgment debtor’s explanation for failure to disclose relying on her professed depression. 

Outstanding documents

94.  In JC’s Supporting Affidavit, the judgement creditor complained that the judgment debtor still had not fully complied with the Disclosure Order including failing to disclose documents relating to all her liabilities revealed in her bankruptcy proceedings despite further documents disclosed in JD’s 3^rd and 4^th Affirmations. 

95.  In JD’s 7^th Affirmation, the judgment debtor admitted that there were omissions or inconsistencies in her previous affirmations.  She explained in [8(viii)] of JD’s 7^th Affirmation that:

“Finally, for the avoidance of doubt, I wish to clarify that insofar as there may be omissions or inconsistencies between my 3^rd Affirmation and my 4^th Affirmation, they were the result of inadvertent and unintentional mistakes on my part, or because I had overlooked certain bank statements or documents in the course of preparing my Affirmations, given the vast volume of documents involved. To illustrate this point, I am given to understand from my legal representatives that 19 hearing bundles have been prepared for the upcoming hearing on 15 March 2021.”

96.  In JD’s 7^th Affirmation, the judgment debtor produced some further documents and clarified that for other “outstanding documents” stated in the Schedule, she either did not have those documents or had previously disclosed them to the judgment creditor.  She said that she had also made follow-up inquiries with various banks and were awaiting their replies. 

97.  The judgment debtor stated her case in respect of the outstanding documents in JD’s 7^th Affirmation.  The judgment creditor did not have the opportunities to reply or cross-examine the judgment debtor on the same.  As such, I make no finding on this issue.  However, more than two years after the Disclosure Order and more than 1.5 years after the Examination Hearing, the judgment debtor said that she was still making inquiries to comply with the Disclosure Order.  This is most unsatisfactory. 

Conclusion on whether the failure to disclose was wilful

98.  At the hearing on 15 April 2019 for the Compliance Order, the judgment debtor’s then counsel informed the court that the judgment debtor had further documents to disclose in compliance with the Disclosure Order.  At that hearing, Master Ho had reminded the judgment debtor through her counsel that if the judgment debtor failed to comply with the Disclosure Order, she might be imprisoned under Order 49B and being cited for contempt.  The judgment debtor’s then counsel confirmed to the court that the judgment debtor understood the effect of the Disclosure Order and the possible consequences stipulated in the Disclosure Order.  The judgment debtor’s then counsel told the court:

“Master, the defendant [ie the judgment debtor] understands the effects of Master Lui’s order [ie the Disclosure Order] and possible consequences stipulated in the order. But the defendant is -- having located further documents just this morning, Master, the defendant is willing to, as soon as possible, provide the same to the plaintiff [ie the judgment creditor] pursuant to the Disclosure Order,” (p5 of hearing bundle D at letters C-F)

99.  I agree with the judgment creditor as stated in [19] of JC’s Supporting Affidavit that requesting banks to provide statements and records was a trivial task of merely instructing the bank to print out bank statements for the relevant accounts and it was not at all onerous. 

100.  From the email sent by the judgment debtor’s then counsel to her on 28 January 2019 exhibited to JD’s 4^th Affirmation and what the judgment debtor’s then counsel told the court at the hearing of 15 April 2019, it was clear that the judgment debtor clearly knew that she had not made full disclosure under the Disclosure Order in January 2019.  Yet, the judgment debtor affirmed JD’s 1^st Affirmation on 25 April 2019 confirming that she had fully complied with the Disclosure Order without disclosing further documents.  I agree with the judgment creditor that the judgment debtor “in fact deliberately made a false statement on oath, in defiance of the Disclosure Order and the Compliance Order ([22] of JC’s Supporting Affidavit).” (Original italic)

101.  The judgment debtor made no further disclosure until filing of JD’s 3^rd Affirmation almost one year after the Examination Hearing.  The further documents disclosed in JD’s 3^rd and 4^th Affirmations were very substantial.  The judgment debtor’s failure to fully disclose pursuant to the Disclosure Order could not be accepted as casual, accidental or unintentional.  It was nothing but wilful.  

Findings and exercise of discretion

102.  I find that the judgment creditor has proved the Disclosure Ground beyond reasonable doubt.  I shall now consider whether I shall exercise my discretion to impose an imprisonment order against the judgment debtor. 

103.  It is not mandatory that the court shall order imprisonment of the judgment debtor upon finding the judgment debtor wilfully failed to make full disclosure as required under Order 49B rule 1A(2)  of the RHC. Order 49B rule 1B(1)  of the RHC expressly provides that it is a matter of discretion. 

104.  Mr Wong SC complained that the judgment creditor had been conducting the Application in a manner calculated to cause prejudice to, and to oppress, the judgment debtor in that the judgment creditor had repeatedly delayed the filing and serving of the Schedule and JC’s Replying Affidavit.  Mr Wong SC criticized the judgment creditor of taking such a long time to come up with the Schedule after the filing of JD’s 4^th Affirmation and of delaying the filing of JC’s Replying Affidavit.  Mr Wong SC said that the judgment debtor had had these committal proceedings hanging over her head for close to two years. 

105.  Transcript for the Examination Hearing was provided to the judgment creditor on about 10 July 2019.  Under the June 2019 Directions, the judgment creditor should have filed and served JC’s Supporting Affidavit by 24 July 2019.  The judgment creditor filed and served JC’s Supporting Affidavit on 30 August 2019, ie about one month later than the original timeframe set by the June 2019 Directions. 

106.  Under the June 2019 Directions, the judgment debtor should have filed and served her affirmation in opposition by 20 September 2019.  The judgment debtor did not file and serve her first affirmation in opposition (ie JD’s 2^nd Affirmation)  until 11 November 2019.  In JD’s 2^nd Affirmation, the judgment debtor undertook to disclose further documents with 56 days, ie by 6 January 2020.  However, the judgment debtor did not disclose any further documents until she filed JD’s 3^rd Affirmation on 26 May 2020. 

107.  The hearing of the Application was originally scheduled for 21 May 2020.  It transpired that the practice of the Former Solicitors had been intervened by the Law Society on 12 May 2020.  The judgment debtor attended the hearing for 21 May 2020.  The judgment debtor sought adjournment of the hearing and leave to file and serve JD’s 3^rd Affirmation and further affirmation.  I granted the judgment debtor’s applications.  The hearing was adjourned to a date to be fixed. 

108.  The judgment debtor filed JD’s 3^rd Affirmation on 26 May 2020 disclosing further documents. 

109.  The current solicitors for the judgment debtor came on records on 2 June 2020 and sought time extension to file and serve further affirmation in opposition.  The judgment debtor filed JD’s 4^th Affirmation on 30 July 2020 when she disclosed yet further substantial documents.  

110.  The hearing was restored for 9 November 2020.  On 5 October 2020, the judgment creditor took out the Discovery Application which led to the subsequent filing and serving of JD’s 6^th Affirmation on 8 January 2021.  On 5 October 2020, the court vacated the 9 November 2020 hearing and directed the hearing to be restored after disposal of the Discovery Application.  The hearing was subsequently restored for 15 March 2021. 

111.  On 4 December 2020, the judgment debtor took out an application to file and serve JD’s 5^th Affirmation.  The judgment debtor’s application was granted by the court and the judgment debtor filed JD’s 5^th Affirmation on 26 January 2021. 

112.  The judgment debtor took 11 months after filing of JC’s Supporting Affidavit to disclose further substantial documents and did not file all her affirmations in opposition to the Application until 26 January 2021, ie more than one year and four months after the original timeframe set by the June 2019 Directions. 

113.  The judgment creditor filed the Schedule on 5 February 2021 and filed and served JC’s Replying Affidavit on 26 February 2021.

114.  From the above, it can be seen that most of the time between filing of JC’s Supporting Affidavit on 30 August 2019 and the hearing on 15 March 2021 was taken up by the judgment debtor in preparing her various affirmations in opposition and producing documents which she should have produced under the Disclosure Order.  Mr Wong’s complaint against the judgment creditor for delaying the progress of the Application is wholly devoid of merits. 

115.  Upon consideration of all the circumstances of the present case, including in particular the followings, I take the view that discretion should be exercised to imprison the judgment debtor:

(a)  the judgment debt in the substantial sum of over US$5 million came from a consent judgment when the judgment debtor was legally represented;

(b)  the volume of documents withheld until after the judgment creditor took out the Application was very substantial;

(c)  the judgment debtor did not only breach the Disclosure Order but also the Compliance Order; and

(d)  the judgment debtor made JD’s 1^st Affirmation knowing that the content therein was false.

116.  I shall now consider the length of imprisonment for this case. 

117.  In Osk Asia Futures Limited v Lam Chin Bin Stanley (unrep., HCA 10335/2000, 13 July 2002)  Master K Y Chan found beyond reasonable doubt that the debtor failed to make a full disclosure of all his assets and investment.  For breach of Order 49B rule 1B(1)(c)  of the RHC, the learned Master imprisoned the debtor for one month.  

118.  In Ip Suk Ching v Luk Kam Heung (unrep., HCA 1215/2006, 10 December 2008)  Master Hui ruled, inter alia, that the debtor failed to disclose a number of documents under a consent order.  As a result, there was a breach of Order 49B rule 1B (c)  of the RHC.  The learned Master imposed an imprisonment order for one month.  

119.  Miss Lok proposed an imprisonment of three months being the maximum length which I may impose under Order 49B rule 1B of the RHC. 

120.  The length of imprisonment should reflect the seriousness of the conduct found by the court.  I am of the view that the maximum period of imprisonment shall be reserved for the worst cases.  I do not think that the present case is one of the worst cases.  With the benefits of the above authorities and bearing in mind the particular facts of the present case and taking into account the remedial actions, albeit late, taken by the judgment debtor after the taking out of the Application in disclosing substantial further documents, I am of the view that a period of imprisonment for one month appropriately reflects the conduct of the judgment debtor having found by this court.  I so order accordingly.  I also fix the support and maintenance allowance at the rate of $725 a day pursuant to Order 49B rule 2 of the RHC.  

Costs

121.  I see no reason why the judgment debtor should not pay costs of the Application.  Taking into account the conduct of the judgment debtor after the making of the Disclosure Order including conduct after taking out of the Application, I agree with Miss Lok that the judgment debtor shall pay costs for the Application on indemnity basis.  As such, I make a costs order nisi that the judgment debtor do pay costs of the judgment creditor for the Application on indemnity basis, to be taxed, if not agreed.  

Conclusion

122.  To conclude, I make the following orders:

(a)  the bailiff do take the judgment debtor herein, Margaret Chiu, and deliver her into the custody of the Commissioner of Correctional Services to be kept in prison for a period of one month unless she shall be sooner discharged in due course of law;

(b)  the support and maintenance allowance of the imprisonment is fixed at the rate of $725 a day; and

(c)  there be an order nisi that the judgment debtor do pay the judgment creditor costs of the Application, to be taxed on indemnity basis, if not agreed.  Such order nisi shall become absolute after 14 days from the date of this Decision unless application to vary the same is received from either party within these 14 days.