LAU KAM CHUAN v. LI JING

HCMP2594/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2594 OF 2002

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J U D G M E N T

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1. The defendant Madam Li Jing is the registered owner of the property known as Flat B, 20/F, Hung Hei Building, No.1 Fa Yuen Street, Kowloon (the property).

2. In HCMP4061/1993, on 29 October 2001, Poon DJ adjudged that the plaintiff Lau Kam Chuan was the owner of one-half share of the property.  In the same proceedings, on 11 February 2002, Registrar Chan made an charging order absolute in respect of the half-share of the property beneficially owned by the defendant. 

3. In HCMP2594/2002, on 19 December 2002, Master Raymond Ho ordered that unless within 56 days of that order, the defendant redeemed the charging order absolute made by Mr Registrar Chan on 11 February 2002 in HCMP4061/1993, the property be sold with vacant possession by private treaty or public auction at a price of not less than $800,000. 

4. In paragraph 4 of that order, the defendant was ordered to deliver all the title deeds and documents relating to the property to the plaintiff within seven days of the date of any agreement for sale and purchase of the property. 

5. The order of Master Ho was served on the defendant on 24 September 2004, endorsed with a penal notice.  

6. On 5 October this year, the plaintiff entered into a sale and purchase agreement in relation to the property.  The completion of this sale and purchase agreement is to take place at the end of this year.  On the same day, notice was given to the defendant, and that was by a letter dated 5 October 2004, and that letter ended with a warning that if she failed to deliver the title deeds and documents within seven days, the plaintiff would cite her for contempt of court, and that she might be committed to prison until she obeyed the order of Master Ho.  

7. The plaintiff has failed to deliver the title deeds and documents within time or at all.  The plaintiff was given leave on 10 November to apply for committal of the defendant.  On 18 November, the notice of motion for committal was issued.  The matter came before me for hearing last Friday. 

8. The defendant has filed two affirmations in opposition, one dated 8 December and the other dated 9 December.  In the affirmation of 8 December, she said she strongly objected to the order (強烈反對).  In the affirmation of 9 December, she went into greater detail, regarding why no order should be made. 

9. The background to these proceedings can be taken from the judgment of the Court of Appeal in CACV4139/2001 and I will not repeat it. 

10. The reasons relied on by the defendant for refusal are unsupportable and cannot impugn the validity of the order for sale of Master Ho.  I would deal briefly with the defendant’s reasons. 

11. The first is that the plaintiff is indebted to the defendant, she has told me about sums of money which she was supposed to have paid him in 1993.  She said in any event, she was entitled to a cross claim.  But this is a matter which should have been raised in HCMP4061/1993.  It is now too late, because she was adjudged liable to pay the plaintiff $217,000 as well as other sums.  If she has a cross claim, that would have been a defence to that claim.  It is too late for her to raise it now. 

12. The other defence relates to her claim in LDPD1280/2003.  That was originally a claim brought by the defendant Madam Li Jing against a Mr 陳泰谷, who I understand was the tenant in relation to the property.  At one time she had obtained leave to issue a writ of possession.  As is normally the case, the writ of possession was signed by the Chief Justice. 

13. Later, on the intervention of Lau Kam Chuan, Lau Kam Chuan was made the 2^nd respondent to those proceedings.  It is very clear from the order of 5 December 2003 that the execution of the writ of possession against Lau Kam Chuan was suspended.  But I do not think the fact that there is a pending action between Madam Li and Lau Kam Chuan in relation to the possession of the property can in any way affect the order for sale made by Master Ho.

14. As for Madam Li’s complaint that the plaintiff had been in wrongful possession, that raises difficult points of law, which no doubt would have to be tried, but in the mean time, the orders made against the defendant are valid and binding. 

15. Madam Li had tried to challenge the order made in HCMP4061/1993.  She had been to the Court of Appeal twice : once in CACV4139/2001 and that was dismissed on 30 January 2003, and then again, I think, in CACV221/2004, and that was dismissed by the Court of Appeal in October of this year. 

16. In October this year, she also tried to stop the enforcement of Master Ho’s order, and that was dismissed by me on 28 October this year.  That was in HCMP2594/2002. 

17. Up to date the title deeds and documents have not been produced.  On 10 December 2004, the defendant at one time told me the title deeds were in the United Kingdom, but when I asked her whether she was prepared to say that on oath, she said that the information relating to the title deeds were in the United Kingdom.  Later, it transpired that according to her, the title deeds and documents are in a safe deposit box in Hong Kong.  But according to her, the key is in the United Kingdom. 

18. She also told me that the title deeds and documents are with the Citic Ka Wah Bank, but she could not remember which branch although she could remember how to get there.  So, I adjourn the matter to enable the defendant to go with the plaintiff to the relevant branch and that, I understand, is the Des Voeux Road Branch of the Citic Ka Wah Bank.  There it was confirmed that the defendant had a safe deposit box, although the number of that box was not revealed because the defendant did not wish the plaintiff to know.  So the parties returned to me at about noon on 10 December 2004 with such information. 

19. An additional piece of information was that although the defendant did not have the key, the safe deposit box could be opened by a locksmith on payment of about $650.  So I adjourned the matter to today, 13 December 2004, in the hope that the defendant would in the meantime open the safe deposit box and bring along the title deeds this morning.  But this morning I was told by the defendant that the safe deposit box has not been opened.  She claimed that it would take a few days.  Anyway, she is contesting the order of Master Ho.

20. According to Ms Cheung, who appeared on behalf of the plaintiff, her instructing solicitor, Mr Lee, spoke to the bank’s Customers Service Manager, Mr Cheung Kwok Man, who told him that in the afternoon of 10 December 2004, the defendant rang him up basically to say that she did not wish the box to be opened yet.  The defendant said that that was not what happened.  She said she did not call the bank but someone from the bank called her.  Basically she said she wanted to contest the application.  So I think it is fair to say that she did not wish the box to be opened until the contest is over. 

21. The plaintiff seeks an order for committal against the defendant.  In the words of Nazareth, NPJ in G & S [2001] 4 HKCFAR 419, at 427F, he said :

“Committal orders are remedies of last resort.  In family cases they should be the very last resort.”

22. I think I can regard this as a family case since the plaintiff and the defendant were at one time married to one another.

23. This morning, Ms Cheung told me since the title deeds and documents are supposedly in the safe deposit box, it might be that access could be gained to the safe deposit box without an order committing the defendant to prison.  She has referred me to Order 45, rule 8.  At one time she wanted an order ordering the defendant to sign a letter of instructions to the Citic Ka Wah Bank, and if the defendant did not sign it then the plaintiff should be permitted to sign it in her place.  I adjourned the hearing so that the documents could be explained to the defendant.  

24. On return, the defendant said that she wanted to consult a free lawyer service, but she would need to go personally to make an appointment, and she wanted to have an opportunity to do so.  However, the matters have dragged on for a very long time and in all the circumstances, I do not think that it is fair to the plaintiff to grant a further adjournment.  Nor do I think that it is likely to help the defendant, as I believe the advice that she would be given, is that she has no defence and that the order of Master Ho has to be obeyed it. 

25. Ms Cheung suggested on the alternative to a letter of authorization and that I should order and direct that the plaintiff Lau Kam Chuan should have full power and authority in the place of Madam Li Jing to open and do all ancillary acts to facilitate the opening of the safe deposit box held in the name of Li Jing with the Citic Ka Wah Bank, so that he could take away from the safe deposit box all the title deeds and documents relating to the property. 

26. I think Order 45, rule 8 is wide enough to enable me to make such an order.  In the circumstances, I believe this order is preferable to an order for committal against the defendant. 

27. To conclude, I say, that this is a case where there is the absence of any credible or plausible explanation by the defendant as to the non-production of the title deeds and documents.  I am also satisfied that the defendant cannot genuinely believe in her defence.  I am satisfied beyond reasonable doubt that she has no bona fide defence and I do not believe that she believed she has a bona fide defence, so I am satisfied that the contempt has been made out.  But for the reasons that I have already given, I am not going to make a committal order.  Instead, I am going to make the order that Ms Cheung proposed.  But I would require the order to contain an indemnity to the bank against any loss or claim which they might suffer as a result of complying with the order.  So, Ms Cheung has to draft up an order with those terms.