Secretary for Justice for and on behalf of the Architectural Services Department v. Sanko Technology Ltd. and Another

DCMP598/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 598 OF 2002

________________________

________________________

________________

R U L I N G

________________

1. This is an interpleader summons which concerns a diesel generator. The 1st claimant and the 2nd claimant are in dispute as to its ownership.

2. On behalf of the 1st claimant, Miss Ip has submitted that I should adjourn resolution of this matter pending the outcome of two actions in the High Court which relate to disputes between her clients and a director of her client's company.

3. Mr Ng, who appears for the 2nd claimant, says that this matter is abundantly clear and I should deal with it now on a summary basis. He says that the evidence produced on his client's behalf is well documented and the matter should proceed without delay.

4. The alternative way in which the matter is approached by Miss Ip today is that there should be a more limited type of adjournment. It is submitted by her that Mr Liu, who is a director of the 1st claimants, has acted in a way which has been severely injurious to the interests of the 1st claimant, including the removal of a number of documents. Some of those documents, it is suspected, are documents which would tend to show that the 1st claimants have good title to this generator and so Miss Ip would wish me to, in the alternative, adjourn the matter so that she can apply for third party discovery against that director.

5. It seems to me that that would be a proper course to take in all the circumstances. Although at first blush Mr Ng's case is well documented, it would seem to me that an injustice might be done to the 1st claimant if I were to proceed today and deal with the matter on a summary basis where it may turn out that the director concerned does have documents which should properly be considered by the court. But I have to take a fairly strong line so far as the timing of all this is concerned because I do not think it would be right to allow this matter, which is in any event relatively modest, I am told this generator, which is a well-used one, is only worth about $100,000 and of course I do not want costs to get completely out of proportion to the value of the matter that is being argued about.

6. So this is how I propose to proceed: On the 1st claimant's undertaking to take out a summons for third party discovery which will be returnable before me no later than 28 days from today (on an overbooking basis if need be):- It is ordered that this summons be adjourned to 14 May, Court 38, at 2.30 pm. Pending the resolution of the issues herein, the generator will be released by the applicant into the custody of the 2nd claimants who will hold it to the court's order and who will store it at a suitable facility whose location they shall disclose to the court and to the 1st claimant and take reasonable care of it. Whilst the generator remains in the custody of the 2nd claimants, they shall be prohibited from putting it to any use whatsoever. The applicant shall be released from any further attendance in this matter unless otherwise ordered to do so by the court.

7. So far as the costs of today are concerned, I propose to say, subject to anything further that may be said on behalf of the parties, that the costs of today shall be costs in the summons and I shall also say certificate for counsel.

8. I have decided to release this into the custody of the 2nd claimant rather than into the custody of the 1st claimant, or indeed to allow it to remain in the custody of the applicant, because it seems to me that as matters presently stand the 2nd claimant has on paper shown a stronger case and I am satisfied that they would be in a position to take proper care of it. I think I need not trouble the applicant from having to go to the bother of continuing to store it, so that is why I have not left it with them. In saying that the 2nd applicant has made out a better case on paper, that is not to say that I prejudge this matter but that is how it stands at present and in any event that position may well change following full argument of the summons itself and following any other evidence which the 1st applicant may be able to put before the court on 14 May when the matter will be heard substantively.