BANCA POPOLARE DI VICENZA Soc. Coop. AND ANOTHER v. ALUTECH (FAR EAST) CO LTD AND OTHERS

HCA 1973/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1973 OF 2007

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D E C I S I O N

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1.  On 13 September 2007, the Plaintiff obtained a Mareva Injunction against a number of Defendants including the 4^th Defendant, Mr Lo.  On 21 September 2007, Mr Lo was arrested and was remanded in Lai Chi Kok Reception Centre. 

2.  Pursuant  to the Mareva injunction, he was required to make an Affidavit disclosing all bank accounts held by him.  He made an affidavit from Lai Chi Kok on 5 October 2007.

3.  In that affidavit, he recorded the fact that he did not then have in his possession the documents evidencing the matters required to be disclosed.  There was an exhibit attached to the affidavit.  That exhibit showed that Mr Lo had an HSBC account, stated the number of the account, which held two amounts, one amount described “about HK$200,000” and the other described “AUD30,000”.

4.  The solicitors for the Plaintiff received the affidavit, and sometime thereafter, prior to 1 November 2007,  received a copy of the HSBC account bank statement which was dated 5 October 2007.  That showed that at that time there was, in the account, AUD30,874 and HK$266,758.80.

5.  On 1 November 2007, the solicitors for the Plaintiff wrote to the solicitors for Mr Lo asserting that the affidavit showed that his bank account held in excess of HK$200,000.  The letter incorrectly fails to recognize that Mr Lo had also asserted as the AUD30,000.  The letter informed Mr Lo’s solicitors that as the solicitors for the Plaintiff were of the view that Mr Lo had intentionally failed to comply with the terms of the Mareva Injunction and announced that they intended to seek a Committal Order against Mr Lo.

6.  Although the letter did not in terms seek a reply was appropriate, and a reply was given by Mr  Lo’s solicitor’s on 7 November 2007, denying the failure, and asserting that any application for committal would be vigorously contested.

7.  At all relevant times, at and after the issue of these committal proceedings, the solicitors for the Plaintiff  were in possession of a bank statement which showed that Mr Lo had “about AUD30,000” and “about HK$200,000”.  

8.  They had not been mislead they had not been confused.  The affidavit contained an adequate explanation as to why accurate figures were not given.  It was an affidavit which asserted that was made in the absence of documents while a man was in Lai Chi Kok on remand. 

9.  Far too often in this jurisdiction, solicitors leap on to the committal bank wagon in an effort to achieve result for their clients.

10.  This was an entirely unnecessary application.  There was nothing more Mr Lo could do other than to say:  “I did not know precisely what the exact amounts were, so I said “about” and to exhibit the bank statement which the solicitors already had.  When pressed Mr Wong was unable to say what Mr Lo might have done in order to purge any contempt that there may have been.  The only justification there can be for the application for committal is to “punish Mr Lo for not stating the exact amounts”.

11.  The inaccuracy is not likely, in all circumstances, to attract the attention of the court certainly not so far as committal proceedings are concerned.  If there was any contempt, and I am satisfied there was none, it was de minimus and may be disregarded.

12.  The application for committal is dismissed.

13.  The application for committal was unnecessary, expensive and the Plaintiff must pay the price of the application.  The Plaintiff must pay the Mr Lo’s costs on the application together with today’s hearing, to be taxed on the indemnity basis.