XCHRX MOBIL OIL HONG KONG LTD. v. KWOK TAT WAN t/a SUN CHUN CO. AND OTHERS

HCA 3138/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3138 OF 2000

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D E C I S I O N

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1. In these actions, the Plaintiff is claiming for the return of certain industrial diesel oil, alternatively for damages for conversion.

2. In the present matter, I am concerned only with the 1st, 2nd, 4th and 5th Defendants in HCA 3138/2000 who are also all the Defendants in HCA 3141/2000.

3. On 23 March 2000, a Mareva Injunction and Order was made by Beeson J. Para. 3 of the Order requires the Defendants and each of them to inform the Plaintiff by the 3rd working day after service of the Order, to be confirmed and verified by affidavit on the 5th working day after the service of the Order, 1) to disclose certain facts and matters, namely all his assets of an individual value of $10,000.00 or more and 2) particulars and whereabouts of the industrial diesel oil, any proceeds of sale or any derivative assets, and 3) all internal notes and memoranda, correspondence etc. evidencing or relating to the sale of the industrial diesel oil, the proceeds of sale or the derivative assets.

4. The Defendants were reminded in the order of the provisions of S. 33 of the Theft Ordinance which states, amongst other things, that a person shall not be excused, by reason that to do so may incriminate that person of an offence under the Theft Ordinance, from complying with any order made in any proceedings for the recovery of any property or for an account of any property or dealings with property, but no statement made in compliance with any order shall, in proceedings for an offence under the Theft Ordinance, be admissible in evidence against that person.

5. By consent, two extensions of time had already been given to the Defendants to provide disclosure and the verifying affirmation as ordered in Beeson J's Order. By the first consent order, time was extended to 7 April and by the second consent order, the extension was granted to 12 April today.

6. There has been no affirmation evidence of why any further extension or a stay should be granted. There is no evidence as to what if any work has been done in compliance with the order. The fact that the defence say that they now wish to apply for a discharge of the order is not a ground by itself for a stay or an extension of time and does not excuse non-compliance with the order.

7. The Writ in the present case shows clearly that the claim is for the recovery of the industrial diesel oil or for an account of the oil or dealings with it, and therefore, S. 33(1) of the Theft Ordinance applies so that the Defendants would not be excused, simply by reason that to do so may incriminate them, from complying with the order made. There being no evidence on which the Defendants seek to justify any further extension of time, in the exercise of my discretion, I would dismiss the application with costs.