HAHN-SHIN MICHELINE, SUCKHI v. THE GOVERNMENT OF HKSAR BAILIFF [OPERATION - SECTION]

HCA 1499/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1499 OF 2006

______________________

_________________________

_______________

J U D G M E N T

_______________

1. This is an application by the Defendant to strike out the claim by the Plaintiff against “the Government – the Bailiff”, later amended by the Plaintiff to “the Government of Hong Kong Special Administrative Region”.  The Defendant represented by Ms. Soong, Government Counsel, does not take issue whether the amendment has been properly or validly made.  She argues that even if it is properly made, the Plaintiff’s claim should be struck out and the action dismissed.

2. The Plaintiff alleges that the bailiff and the staff concerned have not properly performed their duties and thereby she suffered damage and loss.  I have carefully considered the Plaintiff’s statement of claim and all her evidence submitted.  I must confess it is not easy to understand what she has stated.  I find that Ms. Soong in the Defendant’s skeleton submission has accurately summarised the Plaintiff’s claim as follows:

“In summary, the Plaintiff claims a sum of about $3 million as the loss and damage allegedly suffered by her as a result of, inter alia, the following allegations against the bailiff:-

(a) Failing to invite her “to check, whether personal belongings and commercial belongings should be distinguished and separated” after the seizure;

(b) Not being “well educated to be a professional Bailie”;

(c) Seizing her furniture which is “extraordinary and unique.  No more in markets”;

(d) Conducting the public auction in “such a manner, is likely a thief”; and

(e) Conspiring with the auctioneer and the buyers to bid the Plaintiff’s goods at a low price.”

3. The facts of this case can be briefly summarised in the following chronology.

29 March 2006	In the Small Claims Tribunal, Santa Fe Transport International Limited (Santa Fe) obtained judgment against the Plaintiff in this action for a sum of $48,250.00 under Claim No. SCTC 008507 of 2006.
25 May 2006	Santa Fe obtained a Writ of Fieri Facias directing the bailiff to seize the Plaintiff’s goods and chattels at STT 789 Lai Ping Road, Kau To Shan, Shatin being the warehouse of Santa Fe.
29 May 2006	The bailiff received the Writ of Fi Fa and made preparation for execution.
1 June 2006	The Plaintiff called the Bailiff Office and alleged that it was a mistake for Santa Fe to take the Small Claim Action and to issue the execution.  She requested the bailiff to withhold execution of the judgment.
6 June 2006	The Plaintiff called again and repeated the same request.
7 June 2006	Santa Fe sent documents of title that the chattels and goods stored in its warehouse belonged to the Plaintiff in this action.
14 June 2006	The bailiff went to seize the goods at Santa Fe’s warehouse.
15 June 2006	A letter together the inventory of the goods seized and appraised with a value of HK$5,678 was sent to the Plaintiff who requested the auction to be postponed.
16 June 2006	The Plaintiff applied for stay of execution in the Small Claim Tribunal.
17 June 2006	The Plaintiff talked to the executing bailiff Ms. Kwan.
19 June 2006	Application for stay in the Small Claims Tribunal was dismissed.
20 June 2006	Advertisement for sale was published in newspaper.  The Plaintiff called and talked to Mr. Dong, the Senior Bailiff.  She informed Mr. Dong that she had made application to the High Court.  Mr. Dong invited her to view the seized items.
21 June 2006	Application to High Court was dismissed and auction took place.  The goods were sold.

4. The Plaintiff’s main complaints, as I see it, are that the bailiff has not invited her to check her personal belongings and that the goods were sold under value.

5. I must say I do not find in the statute book prescribing a practice that the bailiff has to allow a judgment debtor to inspect her belongings before sale.  I believe such practice has grown out of practical convenience.  As certain goods like necessary clothings are not liable to seizure, it will be better to let the judgment debtor to inspect the goods and identify which articles should not be seized and sold.

6. According to Section 21D(1) of the High Court Ordinance, the goods and chattels which belong to the judgment debtor are liable to attachment and sale in execution of a judgment: they include land, goods, money and notes etc, whether movable or immovable, except those mentioned in the proviso:

“Provided that the following property shall not be so liable, namely, the tools (if any) of the trade of the judgment debtor and the necessary wearing apparel and bedding of him and his family dependent on and residing with him, to a value, inclusive of tools and apparel and bedding, not exceeding $10,000 in the whole.”

7. The proviso exempts from attachment the necessary wearing apparel and bedding of a judgment debtor which together do not exceed a value of $10,000.  The Plaintiff herein mentioned in her evidence that her personal belongings which includes scarfs, nightgowns, skirts, suits and other clothings of famous brand names and furniture from various countries like Italy, England and France well exceed $10,000.  I doubt all these goods are daily necessities.  She had, at least, from the date of judgment i.e. 29 March 2006 to the date of sale i.e. 21 June 2006 for nearly 3 months, had not used them.  Further, I understand that the bailiff had removed and set aside 13 items including mattress, boxes of blankets and quilts, shoes, dirty clothes, pillows etc which were not for sale.  I have not heard testimony but I have a strong inclination to think that the bailiff is not in breach of the law.

8. The Plaintiff’s allegations whether the bailiff has done her duty properly is a factual issue.  It is not a matter that can be decided on affidavit evidence.  Neither do I have any intention of conducting the trial on affidavits.

9. The Defendant’s main argument is a point of law.  According to Section 4(5) of the Crown Proceedings Ordinance (Cap. 300), it is stated as follows:

“(5)     No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connexion with the execution of judicial process.”

10. The bailiff is a person appointed by the court under Section 38A of the High Court Ordinance (Cap. 4) for execution of the process of the Court.  According to the said Section 4(5), no proceedings can be instituted by the Plaintiff against the Government as the bailiff performed her duty in the enforcement of the judgment obtained in the Small Claims Tribunal.

11. For this simple reason I must dismiss the Plaintiff’s claim and strike out her action.  I also make an order nisi in respect of costs pursuant to Order 42 rule 5B(6) of the Rules of High Court.

(a) The Plaintiff pays the Defendant costs of this action (including the costs of the application and all costs reserved), if not agreed, to be assessed by me;

(b) The directions I give for the assessment are:

(i) A date for hearing be fixed for assessment with ½ hour reserved;

(ii) The Defendant shall at least 21 days before hearing file and serve a Statement of Claim;

(iii) The Plaintiff shall within 14 days thereafter file and serve a list of objections to the Statement;

(c) This order nisi shall become absolute 14 days after the date of this judgment unless an application in writing to vary this order nisi is filed and served within the said 14 days.