THE FOOK HING

HCAJ 116/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO. 116 OF 2000

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Admiralty Action in rem against the ship or vessel "FOOK HING"
(Licence No.21854Y)

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J U D G M E N T

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1. This is an application by the plaintiffs for sale of a small craft pendente lite.

2. There is before me an argument on behalf of the defendants in opposition to the sale pendente lite on two basis. The first is that the valuation of the vessel is not as high as the US$50,000 contended by the plaintiffs but a valuation of something like HK$100,000. The second line of opposition is that the circumstances of the defendant family having to make a living by the use of the vessel should suggest to the court that the vessel ought not be sold pendente lite but instead that the vessel could be released from arrest on the undertaking of the defendants not to leave the jurisdiction of the court.

3. I think both submissions shows a total lack of reality of the true nature of the admiralty court and its exercise of the jurisdiction.

4. So far as the valuation is concerned, there is independent survey report showing the valuation of US$50,000. It is, of course, true that there is an affidavit from the defendant owner himself to say that the vessel is worth only HK$100,000 and reference was made to the licence book showing that the vessel was purchased in 1995 at HK$130,000. But as I pointed out to Mr Wong for the defendant during the hearing, the court is unable to resolve this kind of factual dispute at this stage. The best way to realize the true and proper value of the vessel is by sale, and there is no way, on the material before me, that the defendants can convince the court that the true and correct value of the vessel is HK$100,000 as contended by the defendants. The usual procedure of the court is to order the sale of the vessel pendente lite unless there is an agreement as to valuation. There is no agreement as to valuation, so the usual procedure should follow rather than the unusual procedure as advocated by the defendants.

5. So far as the second point is concerned, I think this can be disposed of even more briefly. The suggestion of Mr Wong, on the instructions of the defendants, is that the vessel should be released from arrest so that the defendants can continue to earn their living by the use of the vessel upon their undertaking to the court. This is simply against every principle of the admiralty jurisdiction. The whole point about the arrest of the vessel is that there should be adequate security to cover the claim of the plaintiffs. The court cannot possibly contemplate the release of the vessel from arrest and substitute it by the undertaking of the defendants. I think that the point is surprising for having been raised at all. There is really no merit in this point.

6. It follows, therefore, that the application of the plaintiffs must succeed. I also accede to the request of the plaintiffs for advertisement of the sale in the three publications suggested in the draft order. I therefore make an order in terms of the draft presented to me.