HONG KONG LIFE INSURANCE LTD v. FUNG SIU CHEUNG MICHAEL AND OTHERS

HCA 1164/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1164 OF 2012

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R E A S O N S   F O R   D E C I S I O N

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Introduction

1.  This reasons for decision concerns the application of the 14^th defendant (“Mdm Wong”) to vary the injunction order dated 2 September 2014 (“the 2 Sep injunction”).  The 2 Sep injunction is in the nature of a Mareva injunction restraining Mdm Wong (among other things) from disposing of her assets.

2.  The part of Mdm Wong’s application which was opposed by the plaintiff was her application for withdrawing money from her bank account to pay for her legal expenses.

3.  At the end of the hearing I dismissed the said part of Mdm Wong’s application.  The reasons for doing so appear below.

4.  The applicable legal test is undisputed.  It has been conveniently summarized in Liu Xian Feng and Another v Liu Bo and Others [2006] 4 HKLRD 33 (applying Ostrich Farming Corp Ltd v Ketchell [1997] EWCA Civ 2953).  In short, it involves a two-stage test:

(a) the first stage is in effect that the applicant has to establish on proper evidence that there are no funds or assets available to him (or her) which can be used to pay legal expenses other than the assets which have been enjoined;

(b) if the applicant succeeds in surmounting the first stage (but not otherwise) the second stage is the exercise of the court’s discretionary power to release the enjoined fund for such purpose.

5.  As Mdm Wong implicitly (and correctly) accepted during the hearing, the supporting affirmation did not satisfy the above first stage.  Leaving aside other possible inadequacies, she has not stated (or explained why) there were no other possible sources of fund.  In particular:

(1) Mdm Wong’s husband apparently had his own source of income (he was the one to pay for the monthly mortgage payments for the family property).  There is no evidence whether as regards his gross, or disposable, income, or why he could not fund Mdm Wong’s litigation;

(2) Mdm Wong’s defence filed in September 2013 stated (among other things) she operated a remittance agent/money-changer business.  Her supporting affirmation did not mention anything about this.

6.  Mdm Wong’s argument put forth during the hearing that she would later be filing an affirmation as to her assets and income (as required by the 2 Sep injunction) is not a sufficient answer to the above inadequacies.

7.  Being the applicant who brought this application, it was incumbent upon her to adduce the necessary evidence in support at the time when this application was heard.  There was no application to adjourn this application (and no reason has been given as to why she was not ready to have this application heard).

(Andrew Chung) Judge of the Court of First Instance High Court