HONGKONG INDUSTRIAL AND COMMERICAL BANK LIMITED v. TOMMY WONG SIU LEUNG t/a TUNG YUEN HING KEE MONEY CHANGER AND OTHERS

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an appeal against an order of O'Connor, J. in chambers refusing a prohibition order under s.21B of the Supreme Court Ordinance to prohibit the Defendant from leaving Hong Kong. The application was made under s.21B(1)(c) in respect of a civil claim (other than a judgment) for the payment of money. Under sub-s.3 the court was required not to make an order unless satisfied that certain conditions were fulfilled and sub-s.5 provides that an order under sub-s.1 1 shall lapse on the expiry of one month but that the court may on the application of the judgment-creditor or claimant extend or renew the order for a period which does not exceed, with the initial period of one month and any other period of extension or renewal, three months.

2. The learned judge came to the conclusion that he did not have jurisdiction in the present case because a previous order had beer made under s.21B and had twice been extended or renewed. This was therefore an application for a fresh order. He was aware that in other cases jurisdiction had been accepted by judges of the High Court to grant a fresh order, but he took the vibes that this was not open to him. He referred to two previous decisions. In one of them Penlington, J. assumed that there was jurisdiction - that was in Hongkong & Shanghai Banking Corporation v Fung Action 1983 No.1871 - but in HongKong & Shanghai Banking Corporation v TSANG Pui-shing Action 1983 No. 12432 Jones, J. considered the matter and was satisfied that he did have jurisdiction. The present application was made ex parte. That was in accordance with 0.44A r.2. I think it is clear that the judge appreciated that he was dealing with a case where there had been all the extensions or renewals of the previous order which could be made, and that he thought that the terms of the statute limited the prohibition against leaving Hong Kong to the period of three months and could not be extended by a fresh order. With respect to him, although at first I was inclined to think that he might well be right, I am now satisfied that this is not the law. The Interpretation and General Clauses Ordinance clearly provides that unless the context otherwise requires the singular includes the plural, and on that basis the word "order'' could be interpreted as "orders". I see no reason here why a further or fresh order should not be made, and it must of course be appreciated that upon an application for a fresh order the considerations which the judge will have to take into account are different from those which he will take into account where it is merely an extension or renewal of an existing order; but there is nothing in the statute which leads me to believe that it was intended that there should not be a fresh application where the circumstance justified that course.

3. For these reasons I would allow this appeal and remit the case to the High Court for the application to be considered upon its merits.

Fuad, J.A.:

4. I agree. I wish to refer to an article in Hong Kong Law Journal to which our attention has been drawn: "Uses and Abuses of Prohibition Orders Against Debtors". It is to be found in (1985) 15 H.K.L.R. beginning at p. 367, and it is written by Mr. Peter Morrow who is a solicitor, and a Lecturer in law at the Unviersity of Hong Kong. In that article the learned author discusses the two cases to which my lord the Vice-President has referred and suggests that the purpose of a prohibition order is to prevent the judgment debtor fleeing from Hong Kong in order to evade an oral examination. He goes on to point out that in a normal case the maximum period of three months for which an order can remain in force is ample for this purpose. However, with the utmost respect, he seems to have overlooked the situation where a prohibition order is sought before the civil claim is adjudicated upon, as permitted by s.21B(1)(c) of the Supreme Court Ordinance. In such circumstances of course it would be most unlikely that there would be a judgment, and an opportunity to examine the judgment debtor as to his means, within the period of three months. I agree with my Lord that there is nothing in the Ordinance that prevents a fresh application being made for a prohibition order in respect of the same claim, provided the Applicant is able to satisfy the court once again on all the matters set out in subsection (3) of s.21B, and so I, too, would allow the appeal and remit the matter to be heard on its merits by a judge of the High Court.

Kempster, J.A.:

5. I too agree with the order proposed by my Lord the Vice-President and for the reasons he has given. However, I am not entirely satisfied that O'Connor, J. fully appreciated the nature of the application being made to him on appeal from the Master. His judgment commences with the words:

"This is an appeal against a decision of Master Woolley, made this morning, refusing the plaintiff's application for a third extension of a prohibition order."

Certainly he had no jurisdiction having regard to the provisions of s.21B(5) of the Supreme Court Ordinance further to extend or renew that order. However, for the reasons given by my Lord the Vice-President he had jurisdiction to entertain an application for a fresh order upon which as my Lord, Fuad, J.A.,  has explained it would fall to him ab initio to consider whether the conditions set out in s.21B(3) were satisfied.

24th February 1986