WONG CHI MING v. SU HSIU CHING(a female)

1987 No. A4424

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-----------------

---------------

DECISION

---------------

1. This is an appeal from an order of the learned Master made on the plaintiff's application for judgment in default of defence. The Master adjourned the plaintiff's application to a date to be fixed for oral evidence to be adduced in support of the plaintiff's claim. The plaintiff feels aggrieved by that decision, hence this appeal.

2. The procedural steps taken up to the plaintiff's application for judgment in default of defence may be briefly summarised as follows : the plaintiff commenced this action by writ endorsed with a prayer in the form of a general endorsement, but intituled "Statement of Claim". The plaintiff's intended relief against the defendant was not then wholly pleaded. The plaintiff sought and obtained an interim injunction for preservation of his alleged properties, subject-matters of his claim against the defendant. At the time of his injunction application, the plaintiff undertook to have what then appeared to be a general endorsement appropriately amended so as to embrace all his intended claims against the defendant. The injunction was granted ex parte and thereafter continued, throughout on the plaintiff's said undertaking and his fortification of $50,000.  $50,000 has since been lodged in Court.

3. Accordingly, the plaintiff caused what had been set out in the writ as a prayer to be restored to a general endorsement with an amended full list of his claimed relief. A Statement of Claim was thereafter filed.

4. The plaintiff has now effected service of the writ, the Injunction Order as well as the Statement of Claim on the defendant personally. Evidently, personal service on the defendant of the injunction order was in general necessary for enforcement. But with notice, the bank involved would respect and take heed of it.

5. Personal service of the writ and the Statement of Claim on the defendant is not a procedural pre-requisite.

6. This is an action in which the plaintiff claims as husband against the defendant as his spouse assets, including bank account, fixed deposits and safety box all in the name of the defendant.

7. The plaintiff is over 62 and the defendant 25. The marriage was celebrated in the middle of 1979. The allegations against the defendant are that without cause she has deserted the plaintiff and absconded with some NT$ $2.5 million as well as "valuable properties, including precious watches, diamond rings and jewellery, gold ornaments and five or six cases of clothings".

8. The desertion is said to have taken place in Formosa. The plaintiff has reported the incident to the Tai Pei Police.

9. The learned Master was understandably disturbed by the prayer. It is framed as personal claims against the defendant but with a flavour of declarations, although none of the plaintiff's claims is raised in terms of a declaration in rem. The plaintiff would naturally expect his prayer to be effectual, binding on third parties including the bank.

10. That end may not be achieved unless declarations are sought to like effect. "It is not the practice of the Court to make a declaration of right in default of defence, or on admission or by consent but where such relief is to be granted without trial or evidence, the right course for the Court is not to make a declaration but to state on what footing the relief is to be granted (Wallersteiner v. Moir [1974] 1 W.L.R. 991, per Buckley and Scarman L. JJ.)"⁽¹⁾. It was eminently sensible of the learned Master to call for viva voce evidence at an adjourned hearing, having voiced his concern over the declaratory nature of the plaintiff's relief.

11. However, procedurally speaking, the plaintiff is entitled, as Mr Lau has submitted, to judgment in default of defence as claimed save for prayer (e) : "Watches, diamond jewellery and gold ornaments".

12. Prayer (e) is obscure. It does not specify the items. It provides no means of identification. It is not adequately allied to the items said to have been taken by the defendant on her desertion in 1987. It gives no particulars as to where or in whose custody they are. A Court would not grant an order which is too vague or otherwise inherently defective. In a different context, their Lordships in the Judicial Committee of the Privy Council refused to grant relief "when to do so would be ineffecutal or unnecessary". See Anstalt Nybro v. Hong Kong Report Co. Ltd.⁽²⁾. Even under a Consent Tomlin Order, a Court would decline to enforce an ambiguous and imprecise term in its schedule. See Wilson &. Whitworth Ltd. v. Express and Independent Newspapers Ltd.⁽³⁾. On the same parity of reasoning, I am not persuaded that prayer (e) for "watches, diamond jewellery and gold ornaments" in paragraph 12 of the Statement of Claim should be granted.

13. The rest of the prayers (a), (b), (c) and (d) are only personal claims against the defendant, and obviously as such they would not have the effect of binding on any third party including the bank. Prayers (c) and (d) appear to be less specific or precise, but they do refer categorically to the plaintiff's own properties. The lack of sufficient clarity and precision is not grave enough to justify an exclusion of these prayers as being wholly futile. I accede to the plaintiff's application for prayers (a) and (b) and, not without reluctance, also for prayers (c) and (d).

14. I have emphasized time and again that these are personal claims against the defendant and being not declarations, they would not have the effect of binding on any third party other than the defendant to this action. The plaintiff is likely to be disappointed in execution, but that is not a matter with which I am immediately concerned.

15. Mr Lau also informs the Court that the plaintiff no longer wishes to maintain the interim injunction and that he would he perfectly content with a judgment against the defendant without the injunction order against his wife. Mr Lau asks for the injunction to be discharged and the $50,000 fortification to be returned. That request cannot be denied.

                (Mr Lau interjecting)

16. At this juncture, Mr Lau intervenes. He appreciates that the judgment as granted on the prayer would not have the effect of an order in rem. He dreads the risk of the plaintiff losing protection afforded by the interim injunction which, I am told, has been served on the bank in question, the Shanghai Commerical Bank Ltd. Mr Lau is conscious that a judgment on the prayer may not be wholly in the interest of the plaintiff. Mr Lau proposes to withdraw this appeal as well as the summons for judgment in default of defence. Mr Lau seeks general leave to amend the writ and the Statement of Claim for re-service on the defendant. Mr Lau abandons his application to discharge the interim injunction and to retrieve the $50,000 fortification.

17. This matter has caused me considerable concern. The proposal of Mr Lau is one which I would have suggested. The plaintiff has complained of various encounters with different Masters in the course of these proceedings. His procedural success against the defendant on his present application for judgement in default of defence is said to have been unduly obstructed. Only for these reasons, I resisted every temptation to raise with Mr Lau what must be the only sensible suggestion in terms of his present proposal. My orders have not been formally pronounced, obviously not perfected. I rescind the same. I therefore allow withdrawal of the appeal and the summons for judgment in default of defence.

18. Hence, the Master's order for oral evidence to be adduced at an adjourned hearing would no longer serve any purpose, and no date need therefore be fixed. The interim injunction, therefore, stands on the same fortification from the plaintiff in the sum of $50,000. The plaintiff is to have general liberty to amend the writ and the Statement of Claim.

19. I have endeavoured to seek further assistance from Mr Lau as to the extent and scope of his proposed amendments. Mr Lau frankly concedes that matters shall have to be put in the hands of counsel. He envisages extensive amendments to be made. If the Court were prepared to grant him indulgence, he would prefer to be given general liberty to amend. There is much to be said in favour of Mr Lau's invitation. General liberty is warranted.

20. I therefore order that the plaintiff do have leave to and do withdraw the appeal as well as the summons for judgment against the defendant in default of defence; no date need be fixed pursuant to the order of the learned Master for oral evidence.

21. Finally, there be no order as to costs before the learned Master and for today.

(1) p. 339, marginal reference 19/7/13, vol. 1 1988 White Book

(2) [1980] HKLR 76 at p. 82

(3) [1969] 1 W.L.P. 197, [1969] 1 A.E.R. 294