XCHRX BHAGWAN SHANKARDAS MOORJANI v. THE KA WAH BANK LTD.

HCA 16440/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 16440 OF 1998

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REASONS FOR DECISION

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1. On 11 September 2000, I dismissed the plaintiff's appeal from an order of Master Barnes, with defendant's costs in the cause of the appeal in the main proceedings. I now give my reasons for so doing.

2. This is an appeal from a decision of the master given on 16 August 2000 when she refused to order the lifting of a prohibition order against the plaintiff, which had been originally granted by Master Jones on 3 April 2000 and renewed monthly since then, the last renewal being by Master Kwan on 2 August 2000. The plaintiff also applied to Master Barnes for orders that the defendant pay him a monthly sum to cover his expenses and for an expedited hearing of his appeal to the Court of Appeal in the main proceedings. These last two applications the master had no jurisdiction or power to grant in any event and they were properly dismissed. Costs were awarded to the defendant against the plaintiff assessed at $4,000.00 payable forthwith. This sum has not yet been paid.

3. The background to the prohibition order is that, after a trial before Mr Justice Yam in February and March this year, judgment was given on 10 March 2000 in favour of the defendant, with costs to be taxed and paid by the plaintiff. On 25 May 2000 the defendant filed the appointment to tax with a bill seeking a total of $977,099.00. During the course of the proceedings prior to trial, the defendant had obtained an order for security for costs, following which the plaintiff had paid US$20,000.00 into his account with the defendant by way of security. By order of Mr Justice Yam, this sum was released to the defendant in partial payment of costs, leaving a sum being claimed by way of costs of about $822,000.00. The taxation of costs is fixed to take place on 29 November 2000.

4. Meanwhile a notice of appeal has been filed by the plaintiff against the judgment of Mr Justice Yam, but he has been ordered to pay security for costs of $60,000.00 before this is proceeded with. This sum likewise has not yet been paid.

5. The plaintiff is by his own admission resident out of the jurisdiction. He has no permanent place of abode in Hong Kong, presently residing at a hostel in Chung King Mansions, Tsimshatsui, nor has he apparently any assets in Hong Kong. In oral argument before me, he said that he wished to leave Hong Kong to pursue his business, which he described as buying and selling garments, particularly leather jackets, in Thailand, China and Japan. However, neither in his affidavit in support nor in argument did he condescend upon particulars in respect of this business, or what precisely he intended to do, merely saying that he cannot do business unless he can move freely, and that the defendant gains nothing by him being thus prohibited from leaving Hong Kong. He also says that the defendant has not given credit for costs awarded to him in the course of the proceedings, but he has made no attempt to have these costs taxed, or even to present the court with an estimate of the amount he says he will recover.

6. As against this, the defendant has an order for costs with no stay of execution. It is apparent to me that, following taxation, a substantial sum will be owed by the plaintiff, even assuming a vigorous taxation and a reduction in the amount claimed. The defendant is also owed the costs of $4,000.00 assessed and awarded by Master Barnes.

7. There is no doubt that the court has power to make such an order under section 21B of the High Court Ordinance, under subsection (1), to facilitate the enforcement, securing or pursuance of -

"(a) a judgment against that person for the payment of a specified sum of money; or

(b) a judgment or order against that person -

(i) for the payment of an amount to be assessed; ......"

Under subsection (1)(a), all the defendant has to do is to satisfy the court that the sum is owed. Under subsection (1)(b), the defendant has to show that there is probable cause for believing that the person against whom the order is sought is about to leave Hong Kong, and, by reason of this, satisfaction of the judgment or order is likely to be obstructed or delayed. The plaintiff admits that he intends to leave Hong Kong if he is allowed to do so, but intends to return. However, with no home nor family here, no assets and no place of business, I am not satisfied that there is any reason for him to do so, and consequently any avenue of pursuing a debt to the defendant, by way of examination under Order 49B, or bankruptcy proceedings, would be closed to them. Following such proceedings, were the plaintiff, after due examination and full disclosure of his means, to satisfy the court that he has no way of settling the debt, I have no doubt that he would be free to leave, either to pursue his business or to return to his home country. However, until then, the defendant has no way of establishing his ability to pay or to trace any assets he may have, and the only sanction at all for them is his physical presence here.

8. For these reasons I agree with the master that a prohibition order is entirely appropriate in this case, and the plaintiff has failed to satisfy me that it should be lifted, unless he can produce security in the sum of $500,000.00, the sum requested by the defendant.