BOND SUCCESS DEVELOPMENT LTD. v. YOUNGWAY DEVELOPMENT LTD.

DCDT 8195-7/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

DISTRAINT CASE NO. 8195-7 OF 2002

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

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

______________

JUDGMENT

______________

1. There are 3 interpleader summons before me namely DCDT 8195/2002, DCDT 8196/2002 and DCDT 8197/2002 being goods seized by the Bailiff in respect of the 5th, 6th and 7th floor of 90B Stanley Main Street, Stanley, Hong Kong.

2. At the hearing Counsel for the Claimant abandoned its claim in respect of goods seized on the 5th and 7th floor, i.e. DCDT 8195/2002 and DCDT 8197/2002.

3. In respect of DCDT 8196/2002, the evidence as to the levy of execution was deposed in the affirmation of the Bailiff Mr. Wong Hon Leung which was not challenged and is as follows:-

" At about 1030 hours on 23rd October, 2002, I met the solicitors' staffs, representatives for plaintiff and the security guards at Ground Floor of 90B Stanley main Street; we then proceeded to the 6th Floor for execution. Upon arrival, the premises were operated by a "Curry Food Restaurant" and the manager was met. He was told of our identities and purpose of visit, i.e. levying execution. At this moment, there was no objection or resistance observed. About 20 minutes later, the manager asked me to receive a call from a man called Mr. Karki. Over the phone, he challenged the legality of the execution; he added that the properties situated thereat were belonged to another company called Acetex Trading Limited. Almost at the same time, the manager of the restaurant showed me a Business Registration Certificate, being kept in a glass frame, bearing the name of Acetex Trading Limited. I was so surprised because I had seen the same glass frame on the cashier desk keeping the Business Registration Certificate of the defendant company (i.e. Youngway Development Limited); but the certificate before me was a different one. I then further examined the certificate frame and found that there was another certificate kept under the Acetex's certificate. I requested the manager to peel off the "Acetex" certificate from the frame for inspection, as a result, the "Youngway" certificate was unveiled. I further clarified from the solicitor's staff and confirmed that "Youngway" was the tenant thereof. I then answered Mr. Karki through the phone that the test of the Law for seizure was based on "apparent possession". "Ownership" was a factor to consider but not a determining factor. I also explained to Mr. Karki as if there was really an innocent party involved in the seizure, he or she should go to the Court and lodge a claim. I decided to continue levying the execution by marking down the goods and chattels in the apparent possession of the defendant and about ten minutes later, another woman claimed herself to be Ms. Chau phoned to the restaurant and lodged the same complaint as with Mr. Karki. I repeated the same answer to her. The execution at 6th Floor was concluded at about 1130 hours on the same day."

4. S. 27 of the Landlord & Tenant (Consolidation) Ordinance Cap. 7 states,

"In pursuance of a warrant, a bailiff shall seize the moveable property found in or upon the house or premises mentioned in the warrant and in the apparent possession of the person from whom the rent is claimed, hereinafter called the "debtor", or such part thereof as may in the bailiff's judgment be sufficient to cover the amount of rent together with the costs of the distress."

5. In Hong Kong Land Investment & Agency Co. Ltd. v. Athena Studio & Another [1932-1933] 26 HKLR 39 per Lindsell J,

"Nor do I find any great difficulty in the words 'apparent possession'. In my view, their effect is this: to make liable to distraint all goods on a tenant's premises which at the moment of executing the warrant the bailiff supposes on the evidence of his eyes to be in possession of the tenant. The only test in such a case as this is on entry did the bailiff believe the disputed goods to be in the tenant's possession and, if so, had he reasonable grounds for that belief.

6. The Bailiff upon entry found the Business Registration of the Defendant being placed on a glass frame on the cashier desk. The tenancy agreement entered into between the Plaintiff and the Defendant prohibited against subletting. The manager in the premises when informed of the purpose of the Bailiff's visit did not object to the execution. It was only after 20 minutes Mr. Karki over the phone informed the Bailiff that the properties situated thereat belonged to the Claimant. There was never any allegation of a sub-tenancy.

7. Mr. Lo for the Claimant did not challenge the affirmation of the Bailiff. He relied on the Hong Kong Fire Insurance Company Limited v. Wong Hon Sing Distraint No. 1130 of 1938 in HKLR and a Business Registration Certificate of the Claimant. With respect there was no evidence of a sub-tenancy either by way of a written agreement or by word of mouth from Mr. Karki. The Business Registration Certificate produced by hand through Mr. Lo stated the following particulars:-

Name of Business	Acetex Trading Limited
Business	obliterated
Nature of business	Corp
The next item which was too blur	Body Corporate

8. There was no evidence that the Claimant traded as a restaurant in the premises.

9. In the eyes of the Bailiff the items he seized are in apparent possession of the Defendant.

10. In the premises I order that the goods seized to be released to the Plaintiff for execution.

11. Costs to the Plaintiff.