XCHRX ONG MENG LIN v. YEUNG FU YEE and Another

1993, No. A3936

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On 20 October 1995, the judgment creditor obtained a garnishee absolute against the garnishee. The garnishee appealed against this order. On 10 January 1996, I dismissed the appeal with costs. I grant a certificate for counsel. These are my reasons.

2. In support of the application for the garnishee order, the judgment creditor filed an affidavit by his solicitor. In that affidavit, Mr Hill said that the judgment creditor obtained judgment against the judgment debtors on 11 September 1995, and that he believed that the garnishee is indebted to the judgment debtors in the sum of $100,000. He stated that the grounds for his belief was a letter dated 7 September 1995 "to the representative of [the judgment debtors] Wong Po Chun, which was shown to the [judgment creditor's] representatives on 11 September 1995.".

3. The garnishee produced no evidence for the purpose of the garnishee proceedings, but has now filed an affirmation by Mr Kenny Yeung, a litigation clerk in the garnishee, which is a firm of solicitors. He says -

"As regards the alleged amount of HK$100,000, it is an amount paid by Madam Wong Po Chu to the firm and not by any of the Defendants for obtaining of Counsel's advice on a civil matter. [He produced a copy of the receipt issued to Madam Wong.] From the second affidavit of Anthony Francis Hill of the Plaintiff, I am unable to see any justification which supports his allegations that (I) there are funds belonging to the Defendants with the garnishee, (ii) that the said Madam Wong Po Chun was and/is the representative of the Defendants and (iii) that the said HK$100,000 belonged to the Defendants.

I have made enquiries concerning the case of the Defendants herein and verily believe that there are no funds of the Defendants with the Garnishee."

4. The ground for Mr Hill's belief that the garnishee is indebted to the judgment debtors is the letter of 7 September 1995. The garnishee says nothing whatsoever about this letter. I put to Mr Wong that it seemed to me that the garnishee had deliberately avoided producing this letter, and that the only reasonable inference to draw from this was that the letter did indeed confirm the alleged indebtedness. Mr Wong suggested that the letter was privileged, but nothing is said by the garnishee to justify such a claim, and, in any event, it was shown to the representatives of the judgment creditor on 11 September 1995.

5. The fact is that the judgment creditor has established a prima facie case of the indebtedness of the garnishee to the judgment debtors, and the garnishee has made no attempt to deal with that case. There is, therefore, no basis on which it can be said that the garnishee order should not have been granted.

JK FINDLAY

Judge of the High Court