CHUNG WAI PAPER PRODUCTS MANUFACTORY LTD v. YUEN FAT PAPER PRODUCT FTX

ACTION NO. A1702/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. This is an application under Order 44A rules 7 and 8 for a warrant requiring the Defendant to furnish security, or to show cause why he should not, failing which the bailiff is enjoined to attach his moveable and immoveable property. The ground for the application is that there is probable cause for believing that the Defendant is about to dispose of or remove his property with intent to avoid the consequences of judgment.

2. The application is made ex-parte, and Mr. Kwan, to whom I am indebted for his careful argument and research, argues that it would defeat the object of the rule if it were to be made otherwise. I see the force in his argument particularly in the light of the opportunity which the procedure provides for the defendant to appear to show cause. What is envisaged is something in the nature of an Order Nisi and therefore one would have thought that an ex-parte application was appropriate. It is curious in those circumstances that the rule does not say either that the application may or must be made ex-parte, but I bear in mind that the rule is one of long standing and that the introduction to other parts of Order 44A and 49B of the express provision that application may or must be ex-parte is of very recent origin. On balance, therefore, after some hesitation I am satisfied that notwithstanding the rule does not expressly provide for it, that this application certainly may be made ex-parte, and perhaps, on a true construction, must be.

3. I am satisfied on the evidence before me, namely the two affirmations of Lo Wing Wah, that there is probable cause for believing that the Defendant may dispose of his factory equipment and machinery as specified in the second of the two affirmations referred to and moreover that such property is worth in the order of HK$60,000.00. Therefore upon the usual undertaking as to damages and upon reading the affirmations and upon hearing Mr. Kwan for the Plaintiff, and upon having produced before me the writ I am prepared to make an order that a warrant issue in the form of the draft placed before me today calling upon the Defendant by the 27th day of March to furnish security in the sum claimed or within that period to show cause why he should not, failing which the bailiff will be commanded to attach all movable or unmovable property of the Defendant within the colony until further order. (21st March 1985) After further argument I amend my order of yesterday to vary the period allowed for compliance or within which cause may be shown to 7 days from the date of service of the warrant.