SHUM HING WONG t/a NGAN BO FINANCE CO v. CHENG CHUNG CHING

DCCJ 16608/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 16608 OF 2000

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Ruling

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1. This is an application for substituted service of an examination order on the Defendant. Requisition has been raised and the Plaintiff tried to clarify the query by supplemental affirmation, and further applied for a prohibition order against the Defendant. Having considered all the evidence, I ordered substituted service of the examination order on the Defendant in terms hereinafter mentioned but ruled against the application for prohibition order. And this is my reason for coming to this a decision.

2. In this action, the Plaintiff claimed against the Defendant for repayment of a loan. Judgment against the Defendant was granted on 18th January 2001. The costs of the action had been taxed and an Allocatur was issued on 12th February 2001. On or about 3rd June 2003, the Plaintiff filed a notice of intention to proceed and took out an ex-parte application to examine the Defendant (Judgment Debtor) under Order 49B of the Rules of District Court. Master Wong granted an order for examination on 8th July 2003.

3. On or about 26th July 2003, the Plaintiff took out a further ex-parte application for substituted service of the said examination order on the Defendant by leaving a seal copy order at Room 210, Fung Wo House, Wo Che Estate, Shatin, New Territories ("the said premises"). In support of this application, a second affirmation of Lam Keung ("Mr. Lam") was filed on behalf of the Plaintiff.

4. Mr. Lam is a litigation clerk in the employ of Messrs. George Y.C. Mok & Co., solicitors for the Plaintiff. According to his affirmation, he attempted to serve a copy of the order for examination on the Defendant personally. A notice by letter was sent by Post to the Defendant at the said premises informing the Defendant of his visits. On 21st July 2003 at about 5 p.m., Mr. Lam attended the said premises. A female opened the door. He informed the lady the purpose of his visit. The lady claimed to be the mother of the Defendant. She said the Defendant was not at home but she refused to tell Mr. Lam when the Defendant would be back. Mr. Lam left and he returned to the said premises again on 23rd July 2003 at about 8 p.m.

5. On this second visit to the said premises, he met a male. The gentleman claimed to be the brother of the Defendant who said that the Defendant had left the jurisdiction for PRC and he did not know when the Defendant would be back.

6. On the basis of the above information, Mr. Lam submitted that the Plaintiff had taken all reasonable and practical efforts and used all due means to serve the order personally on the Defendant. He also submitted that the Defendant was trying to evade the service of the said examination order on him.

But one cannot be sure if the Defendant is within the jurisdiction of Hong Kong.

7. In further support of the said application for substituted service, Mr. Lam filed his third affirmation on 7th August 2003. Mr. Lam stated in his third affirmation that during his said visit to the said premises on 23rd July 2003, when the Defendant's brother told him that the Defendant had left the jurisdiction for PRC, he had a strong feeling that the Defendant's brother was telling lies in order to assist the Defendant to evade the service of the order. He also said that according to the Plaintiff, the Defendant was still working and living in the said premises with his son and others.

8. Under Order 49B of the Rules of District Court, the Court may order a judgment debtor to appear before the Court at an appointed time. If the judgment debtor does not attend accordingly, the Court may issue a warrant of arrest to bring him to Court, provided that the examination order has been served personally on the judgment debtor with a penal notice.

9. Order 65 rule 4 of the Rules of District Court provides that the Court may direct substituted service of a document that has to be served personally. In making such an order, the concern of the court is whether the usual mode of service is not practical and whether the proposed mode of service could bring to the attention of the Defendant the document to be served.

10. Further, if the document to be served by substituted service is an examination order, additional consideration shall be made before granting the order. It is stated in paragraph 49B/1/1 of the Hong Kong Civil Procedure 2002 that "substituted service may be permissible in exceptional cases only".

11. As stated above, if the Defendant having been served with an order for examination does not turn up for the examination, the court has the power under Order 49B of the Rules of District Court to issue a warrant of arrest to bring him to court. Since the personal liberty of a citizen is affected, I agree entirely with the learned editor of the Hong Kong Civil Practice 2002 that substituted service for an examination order should be granted in exceptional cases only.

12. I have not been able to find any case law on what are such exceptional cases. And one of the situations that I could think of is when the Defendant is trying to evade service. And this is the ground relied upon by the Plaintiff, as stated in the second affirmation of Mr. Lam, to support his application.

13. With these principles in mind, I examine the said affirmation of Mr. Lam. I note that while Mr. Lam said the Defendant's brother was lying to him, he put it no higher than a feeling. I cannot assess what is the evidential value of a feeling. And the Plaintiff himself had not filed any affirmation to support the claim that the Defendant was living in the said premises.

14. With the affirmation before me then, I was not satisfied that there is sufficient evidence to support the assertion that the Defendant is evading service or that this is an exceptional case. Further, I do not know if the Defendant is in Hong Kong. On 22nd August 2003, I refused to grant the order for substituted service as applied but allow the Plaintiff to produce further evidence, if he wished to proceed.

15. On or about 16th September 2003, Mr. George Mok, solicitor for the Plaintiff filed his second affirmation. Mr. Mok produced the movement record of the Defendant obtained from the Immigration Department. This movement record shows the number of exit from and entrance into Hong Kong by the Defendant for the period from 1st July 2000 to 10th September 2003. The Defendant had left Hong Kong on 5th September 2003 and returned on 6th. He also left on 7th September 2003 and returned on 8th. And there was no other movement record.

16. The Plaintiff is now relying on the movement record of the Defendant to argue that the Defendant habitually and frequently left the jurisdiction from PRC and returned to the jurisdiction on the following day. Mr. Mok submitted that it is a suitable and appropriate case to grant an order of substituted service for an order for examination, as personal service was unsuccessful despite of appointment in advance. Any satisfaction of the judgment or order which the Plaintiff sought will be delayed or obstructed if the Defendant is not present in the territories.

17. From the movement record produced, I cannot agree with Mr. Mok that the Defendant is habitually leaving the jurisdiction and return on the following day. The record only shows two sets of exit and entrance records.

18. It becomes apparent from the movement record that the brother of the Defendant was lying to Mr. Lam on 23rd July 2003 in saying that the Defendant has left the jurisdiction for PRC. However, there is no evidence to suggest, and indeed not so suggested by Mr. Mok that the Defendant and his brother were in collusion to evade service.

19. While I cannot conclude that the Defendant is evading service, that is not the only exceptional case when substituted service should be allowed for an examination order. Provided the facts could show that there is unjustified obstruction of the service, even from his relatives, and the means of substituted service could reach the attention of the Defendant with a certain degree of certainty, then, the Court should grant the order.

20. In the present case, the mother did acknowledge that the Defendant was living in the said premises. The way how the mother and the brother acted, particularly that the brother had lied to Mr. Lam, would obstructed the Plaintiff to serve the order on the Defendant.

21. Since both the mother and the brother of the Defendant did not deny that the Defendant lived in the said premises. I could safely assume that they would be able to notify the Defendant if the Order is serve upon them. The Defendant has, according to the movement record returned to Hong Kong. There appears to be certainty that by serving an order on an adult inmate at the said premises, it would be brought to the attention of the Defendant.

22. I found this is an exceptional case that justifies the granting of an order for substituted service of the examination order. I therefore allow the application for substituted service on the following terms:-

1.	A sealed copy of the examination order with a new appointed time for examination served personally on an adult inmate at the said premises and another sealed copy of the examination order be sent by ordinary post to the Defendant addressed to the said premises; and
2.	A notice of the examination order published once in a widely distributed Chinese newspapers in Hong Kong shall be good and sufficient service of the examination order on the Defendant.

23. Mr. Mok further applied on behalf of the Plaintiff for a prohibition order against the Defendant under Order 44A rule 2 or Rule 49B rule 1(2). He is relying on the said travelling of the Defendant between Hong Kong and PRC to support the application.

24. The mere fact that a judgment debtor has to travel between Hong Kong and PRC would not be sufficient to support an application for prohibition order. I refer to the comment by Mr. Justice Waung in Sterling Services Limited v. Tan Kee Cheang HCCL72/2002, that it is not uncommon these days for [Hong Kong] people to work in PRC, and have to travel in and out but maintain a close connection with Hong Kong.

25. In considering whether to give a prohibition order, I would refer to the judgment of Madam Justice Bokhary in Avoco Financial Services (Asia) Ltd. v. Topma Electronics Ltd & Ors. [1999] 4 HKC 193. This is an application to discharge a prohibition order issued under Order 44A of the Rules of High Court. Her Ladyship after analysing the relevant section in the High Court Ordinance, said :-

"Even where there is a judgment, an order prohibiting the judgment debtor from leaving Hong Kong is for the purpose of facilitating the enforcement of that judgment. It would not be appropriate to make a prohibition order unless prohibiting the judgment debtor from leaving Hong Kong is reasonably and properly conducive to the enforcement of the judgment. ......It must be remembered that what has to be justified is an order interfering with a person's freedom to leave Hong Kong, which is a freedom guaranteed by Art. 31 of the Basic Law.

"But even where, as in the present instance, judgment has been obtained, there must at least be some evidence that enforcement of the judgment would be impeded in some significant way if no prohibition order were made."

26. The provision for prohibition order in the District Court Ordinance and the Rules of the District Court are similar to the provision in the High Court Ordinance and Rules of the High Court. The principle as lay down by Madam Justice Bokhary in considering whether prohibition order should be granted applies equally to a prohibition order to be granted under the Rules of the District Court.

27. The fact that the Defendant travel to and fro between Hong Kong and PRC could at the highest be interpreted as making execution more difficult for the Plaintiff (per Madam Justice Bokary in Avoco Financial Services (Asia) Ltd. v. Topma Electronics Ltd & Ors. [1999] 4 HKC 193, 195). There is no evidence from the Plaintiff that the enforcement of the judgment would be impeded in "some significant way".

28. Mr. Mok seems to suggest that a prohibition order could be used for bringing the proceeding to the attention of the Defendant. He said in paragraph 7 of his second affirmation, "the Immigration Officer at the control point of Lo Wu can lawfully stop and prohibit the Defendant for leaving Hong Kong and in the meantime inform the Defendant that he is subject of an order for oral examination."

29. It is sufficient for me to say that it is definitely wrong to use the prohibition order as a mean to serve the examination order on the Defendant. It may be granted in case where the Defendant is trying to escape from the territories, or to evade service. There is no evidence to that effect.

30. I would dismiss the application for prohibition order.

31. The said ruling of Madam Justice Bokhary also shed light on the rational behind the suggestion by the learned editor of the Hong Kong Civil Procedure 2002 that only in exceptional cases when a substituted service is to be issued. The right of any citizen to leave Hong Kong is one protected by the Basic Law. There had to be compelling reason for interfering with his right. Substituted service of an examination order should be granted only in exceptional cases.

Dated the 6th day of October 2003