THE KA WAH BANK LIMITED v. LOW CHUNG SONG AND OTHERS

Civil procedure - competing application for striking out defence on ground of non-compliance with unless order as to discovery and application for time to be extended under unless order - whether inclusion of residential address of affirmants obligatory in affirmations verifying lists of documents - whether a Hong Kong solicitor is empowered to take affirmations out of Hong Kong for use in Hong Kong - whether purported affirmations taken irregular or a nullity - grounds relevant to exercise of Court's discretion to extend time where defendants fugitives from justice - Held: 1. Inclusion of residential address where affirmations made in personal capacity is obligatory; 2. A Hong Kong solicitor is not empowered to take an affirmation outside Hong Kong even if it is only to be used in Hong Kong court proceedings; 3. Substantial compliance with unless order on particular facts of this case proper ground for exercise of Court's discretion to extend time limit under unless order; 4. Defendants status as fugitives from Hong Kong justice does net in the instant circumstances disentitle them being granted the indulgence of the Court's leave to have the time limited under the unless order extended; 5. Time extended accordingly.

H. C. Action No. 4191 of 1987

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. At this interlocutory stage of the action I have before me two summonses. The first summons is filed by the plaintiff under Order 38 Rule 2 and applies for the defence of the 1st and 2nd defendants (hereafter called "the defendants") to be struck out or alternatively that they attend for the purpose of being cross-examined on their addresses given in purported affirmations verifying their List of Documents failing which their defence be struck out. The second summons is filed by the defendants and seeks leave to use the affirmations filed notwithstanding the addresses given are not residential addresses or alternatively for time to be extended for 14 days to enable further affirmations disclosing residential addresses but otherwise in identical terms to be filed.

2. In the action itself the plaintiff claims damages for conspiracy and other relief arising from loans totalling approximately $80 million made by the plaintiff during 1982 and 1983 to Compact Investment S Finance Ltd ('Compact'). The loans were made on the security of certain shares Compact represented it held in Taiwan Hotel Co. Ltd ('THC'). At the material time the 1st defendant was the Managing Director and the 2nd defendant was an Executive Director of the plaintiff. The Amended Statement of Claim alleges, inter alia, that the defendants when approving the acceptance by the plaintiff of the THC shares as security for the loan to Compact knew they were a worthless and sham security.

3. On 21st January 1988 the plaintiff issued a summons under Order 25 Rule 1 R. S. C. for orders that the defendants within 14 days file and serve a List of Documents and verify the same by affidavit. On 5th February 1988 a Master made an order in terms of that summons. The defendants failed to comply with the Master's order. This led the plaintiff on 23rd February 1988 to file a summons for an order to strike out the defendants' defence and enter judgment in favour of the plaintiff.

4. The striking out summons came before Godfrey J. , on 4th March 1988 when he made an unless order against the defendants. Under this order the defences were to be struck out, unless the defendants within 14 days, filed and served a List of Documents and verified the same by affirmation. On 12th March 1988, within the time limited by the unless order, the defendants respectively filed and served a List of Documents and a document engrossed as being an affirmation verifying the same. The verifying documents were affirmed by the defendants in Taiwan before a solicitor of the Supreme Court of Hong Kong.

5. The narrow issue arising on both summonses is whether the documents signed by the defendants and engrossed as being affirmations verifying the List of Documents and alternatively referred to by the plaintiff as purported affirmations, were affirmations which complied with the Rules of the Supreme Court. Counsel for the plaintiff submitted that the objection was far from being technical but raised an issue of substance which if sound, required the defendants to obtain leave frog Court to rectify the alleged irregularities. On the question of leave the plaintiff's submission, in summary, was that the defendants were fugitives from justice and that status together with their conduct in this action, properly entitled the Court's discretion, as to leave, to be exercised on the merits against them.

6. The submission that the defendants were fugitives from justice was founded on the affidavit of Mr. P. J. Wintle filed in support of the plaintiff's summons. Mr. Wintle deposed that the defendants were arrested in Singapore and Malaysia on 26th July 1987 for extradition to Hong Kong on charges of conspiracy to defraud, false accounting and other offences. They returned to Hong Kong voluntarily and were later released on cash bail in the sums of $10 million and $11 million respectively. In January 1988 they failed to comply with the conditions of bail and absconded. It is common ground that they are now living in Taiwan. The 37th, 38th and 39th charges in the Hong Kong criminal proceedings, on which they-were granted bail, relate to the same $80 million loan which is the subject of the present action.

7. Against that background I turn to consider the plaintiffs attack on the purported affirmations which in effect raises at least three separate issues. First, whether the failure to disclose a residential address in the affirmations constitutes an irregularity. Secondly, whether a solicitor of the Supreme Court of Hong Kong is empowered to take affirmations outside Hong Kong for use in Hong Kong. Thirdly, if the affirmations were defective , the relevant grounds on which the Court's discretion to grant leave should be exercised.

    The requirement to disclose a residential address

8. Dealing with the first issue, the formal requirements of affidavits and affirmations are set out in the Rules of the Supreme Court Order 41 Rule 1. The obligation to disclose either the affirmant's place of residence or alternatively in the limited circumstances specified, his place of work, is contained in sub-rule (4) in these terms:

"    (4) Every affidavit must be expressed in the first person and, unless the Court otherwise directs, must state the place of residence of the deponent and his occupation or, if he has none, his description, and if he is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit must state that fact. In the case of a deponent who is giving evidence in a professional, business or other occupational capacity the affidavit may, instead of stating the deponent's place of residence, state the address at which he works, the position he holds and the name of his firm or employer, if any. "

9. At the date of filing the purported affirmations there had been no other direction of the Court so the primary provisions of the rule applied. Tile address given in both affirmations was:

"RM 806 No. 50 SEC. 1,

HSIN SENG SOUTH ROAD,

TAIPEI,

TAIWAN,

R. O. C. "

 

10. It is common ground that was not the affirmants residential address. Counsel for the plaintiff submitted that the address given was an illusory address and did not comply with the Rules. The factual basis of this submission were the statements and exhibits contained in Mr. Wintle's affidavit relating to enquiries made by Commercial. Trademark Services (Taiwan) Ltd ('CTS') at the address given in the affirmations. A representative of CTS called at that address, which were office premises occupied by two companies whose names were displayed at the entrance. On enquiry being made of a Miss Sung and Miss Lin, who were working in the office, they both stated that the defendants were not known to them.

11. If the evidence had not gong beyond Mr. Wintle's affidavit, that would have been powerful evidence that the address given was illusory. The law is well settled that an affidavit which only gives an illusory address may be rejected. I was referred to the commentary in 1 'The Supreme Court Practice 1988' 650 and to Hyde v. Hyde (1888) 59 LT 523 cited therein at 41/1/5.

12. Whether the Tai Taiwan address given was illusory depends also on the weight to be given to a subsequent affidavit of Mr. J. N. Midgley filed on behalf of the defendants. Mr. Midgley stated that he travelled from Hong Kong to Taiwan and on 2nd May 1983 visited the address given in the affirmations. At the office premises at that address, he spoke to the defendants. He ascertained that the Miss Sung referred to in Mr. Wintle's affidavit was in fact a bliss Susanna Song. Miss Song and Miss Lin, both of whom were referred to in Mr. Wintle's affidavit, were also present at those premises. On interviewing Miss Song, she recollected the visit of the CTS investigator, agreed that she told him that she did not know the defendants and that they did not work at that address. Miss Song went on to tell Mr. Midgley that the CTS employee informed her that he was a credit investigator. She told Mr. Midgley that in accordance with general instructions given to her and Miss Lin by the defendants, she informed the CTS investigator that she did not know of the defendants. Mr. Midgley also interviewed Miss Lin who gave the same explanation.

13. In his affidavit, Mr. Midgley went on to state that the office premises were in a good class of commercial building which were also the Taiwan address of two major Hong Kong companies. Further that it was the correspondence address to which Mr. Midgley's firm of solicitors, who act for the defendants, successfully send letters to them.  I record that the address for service of the defendants for the purpose of the action is the address of Mr. Midgley's firm. Mr. Midgley also set out in his affidavit what he had been informed and believed to be the residential addresses of the defendants in Taiwan.

14. Counsel for the defendants submitted that if the affirmation were defective by failing to disclose a residential address, that irregularity could readily be cured by the exercise of the Court's discretion under Order 41 Rule 4. It was also pointed out that the unless order comprised three separate elements. Counsel emphasised that the defendants had strictly complied with at least two of those elements by filing the List of Documents and doing so within the 14 day time limit. At most it was only the form of the affirmations which was in dispute. Further those affirmations whether regular or irregular, had also been filed within the time limit imposed by the unless order.

15. It was submitted that as a matter of practice affirmations were frequently filed where no residential address was disclosed. I was referred to two affirmations filed by the plaintiff in the present action, which failed to disclose a residential address and also failed to comply with the alternative provisions relating to disclosure of a place of work. In passing I also note that Mr. Midgley's affidavit appears to give a work rather than a residential address but does not in terms disclose that he is a solicitor for the defendants, nor does it otherwise strictly comply with the Pules for it omits his occupation.

16. Counsel for the defendants also pointed out what he submitted was the very different factual position which arose in Hyde v. Hyde. That case concerned divorce proceedings in which custody of the children was granted to husband. The wife removed the children out of the jurisdiction. In the subsequent contempt proceedings, the wife filed affidavits, the first of which contained not address while the later affdavit only disclosed her mother's address. The Court refused to receive the affidavits on the ground that the first affidavit gave no address and the later affidavit merely an illusory address. Counsel for the defendants submitted that here the Taiwan address given was, in view of Mr. Midgley's affidavit a real and not an illusory address. Further, that while in Hyde v. Hyde the wife's real address was directly relevant to the husband's attempt to discover the whereabouts of his children, in the present case that was not a consideration important or even relevant, to the plaintiff's right to discovery.

17. Counsel for the defendants also took issue with the plaintiff's submission that even on the defendants own documents, the Taiwan address was not their place of work but was at most a postal address or a place where the defendants might be met by appointment. It was pointed out for the defendants, that there were several references in Mr. Midgley's affidavit that the Taiwan office premises were also actually used by the defendants. I am prepared to find that it was an address at which the defendants could be communicated with by correspondence. I also accept that the denials given by Miss Song and Miss Lin to the CTS investigator were untrue and were only given because of the defendants' instructions. While it is true that the CTS investigator did not reveal he was making enquiries for the plaintiff, there is much force in the plaintiff's submission that in vice of the instructions given to Miss Song and Miss Lin, they would probably have given the same denial even if he had revealed the name of his principal and may even have given the same denial to a bailiff or other officer of the Court.

18. However, while the evidence in relation to the Taiwan address may be relevant to the defendants conduct, it is not necessary for the purposes of Order 41 Rule 1, to determine whether the Taiwan address was the defendants place of work. For under Order 41 an affirmant may only substitute his place of work for his place of residence, where his affirmation is given not in his personal capacity but in a professional, business or other occupational capacity. In this action the defendants are sued in their own person and gave their purported affirmations solely in their personal capacity. Under Order 41 it was therefore obligatory for them to give their residential address. It is common ground that the Taiwan address - whether real or illusory - was not their residential address. I am aware that in paragraph 18 of Mr. Midgley's affidavit two addresses, which he had been informed and verily believed were the defendants residential addresses, were disclosed. Quite apart from the fact that those addresses were never included in the defendants affirmations I hold that the contents of paragraph 18 are inadmissible. For in breach of the principle enunciated by the English Court of Appeal in the case of In re Young Manufacturing Co. Ltd (1900) 2 Ch 753, the deponent failed to state the source of his information or belief. As the address given in the affirmations was not the affirmants residential address it follows, as a matter of law, that the purported affirmations were irregular. The Court, of course, does have the power to order that the purported affirmations may nevertheless be used. An appropriate direction may be made under order 41 Rule 1(4) or leave may be granted under Order 41 Rule 4. I also accept that where a residential address has been omitted due to inadvertence, a Court would normally have no hesitation in making an order under either of those provisions and would usually do so under Order 41 Rule 4.

19. The second issue is whether a Hong Kong solicitor may take an affirmation outside Hong Kong for use thereafter in Hong Kong. The facts are that a Hong Kong solicitor travelled to Taiwan and took the disputed affirmations in that foreign country. The statutory power of a Hong Kong solicitor to administer and receive affirmations is contained in Section 7A(1) of the Legal Practitioners Ordinance, Cap. 159 in these terms:

"7A.    (1) For the purpose of administering and receiving an oath, affidavit or affirmation and solicitor who is in practice in Hong Kong and holds a current practising certificate shall possess and may exercise all the powers of a commissioner for oaths that are conferred by or under any law. "

20. Under the Rules of the Supreme Court, at the material time, the former Order 111 Rule 1(2) -now Order 114 Rule 1(2) - provided, in relation to persons appointed under the Order to be commissioners for oaths, that:

"(2) Every person so appointed shall be styled a commissioner for oaths and shall have all the powers and discharge all the duties which now belong to the office of a commissioner to administer oaths. "

21. Both these provisions are silent on whether a Hong Kong commissioner for oaths may administer affirmations outside Hong Kong. The provisions are also singularly unhelpful because of the manner in which they are drafted. Neither attempts any comprehensive definition of a commissioner's powers or prescribes any limits to those powers. Section 7A contents itself by empowering a solicitor to exercise all the powers of a commissioner for oaths that are conferred by or under "any law". Rule 1(2) merely declares that commissioners appointed under Order 111 have the same powers as "now belong to the office of a commissioner ...". The only Hong Kong statutory provision which attempts to state some of those powers in more detail is the Oaths and Declarations Ordinance, Cap. 11 but it is also silent on whether a commissioner for oaths may take an affirmation outside Hong Kong for use in Hong Kong. Section 9 makes it an offence for a person to administer an affirmation for which he has no jurisdiction by some enactment. Section 10 provides that affirmations taken under Section 6 of the English Commissioners for Oaths Act 1889 shall be as effectual as if duly affirmed before a lawful authority in Hong Kong. Finally, Order 41 Rule 12 provides for the taking of affidavits in Commonwealth or foreign countries. The particular provisions relevant to affidavits or affirmations in foreign countries being those contained in Rule 12(2):

"(2)    Any affidavit sworn in foreign parts out of Her Majesty's dominions before a judge or magistrate, being authenticated by the official seal of the foreign court to which he is attached or of such magistrate, or before a notary public or a British consular officer, may be used in the Court in all cases where affidavits are admissible. "

22. Counsel for the plaintiff strongly submitted that a Hong Kong solicitor is not empowered to take an affirmation outside Hong Kong for use in Hong Kong. It was submitted that a Hong Kong solicitor could only do so if he was expressly authorised under any law and it was common ground that there was no such express provision in any of Hong Kong's laws. Counsel for the plaintiff stressed that Section 9 emphasised the importance of express authority, for it makes it a criminal offence for a person to take an affirmation unless he is empowered to do so under an enactment.

23. In short, Counsel for the plaintiff submitted that if there was no express power to take affirmations outside Hong Kong there was no power: Counsel for the plaintiff contended that his submission was reinforced by the fact that the overall scheme of legislation in this area, was to provide express and special provisions for the taking of affirmations out of Hong Kong. Section 10 of the Oaths and Declarations Ordinance and order 41 Rule 12 were advanced as elements of that scheme.

24. This interpretation of the limited powers of a Hong Kong solicitor or commissioner of oaths, it was submitted, was further strengthened by a consideration of the position in England and the extent to which English provisions have been incorporated in Hong Kong legislation. Solicitors in England have the same poorer to take affirmations which are conferred on English commissioners for Oaths under the Commissioners for Oaths Act 1889. Section 1(2) expressly provides:

"(2)    A commissioner for oaths may, by virtue of his commission, in England or elsewhere, administer any oath or take any affidavit....."

25. Under Section 11 references to 'affidavit' are extended to include an 'affirmation'. Counsel for the plaintiff submitted that the English provisions were important aids to the construction of the Hong Kong provisions for at least two reasons. First, in England the legislature considered it necessary expressly to empower commissioners to take affirmations outside England. Secondly, the Hong Kong legislature when it enacted the Oaths and Declaration Ordinance in 1972, expressly incorporated only Section 6 of the English Act but did not incorporate the wide provisions of Section 1. If it had wished to give Hong Kong solicitors the power to take affirmations outside Hong Kong it could very easily have done so by incorporating Section 1.

26. Fundamentally, these submissions concern the proper construction of the Hong Kong legislation. However, Counsel for the plaintiff rent on augment these submissions by others which touched on the issue of extraterritoriality. The Court vas reminded of the presumption against the extraterritorial effect of colonial legislation, compared with that of a sovereign state, referred to in 'Craies on Statute Law' (7th Edn) 499:

"...Colonial statutes in another important respect differ from British statutes, in that they can have no extraterritorial effect even as to British subjects unless the power of extraterritorial legislation or extraterritorial constraint, has been expressly or impliedly conceded by a British Act, or by Order in Council, charter or proclamation. "

27. It was submitted that in view of the express power in Order 41 Pule 12 for affirmations to be taken in foreign countries such as Taiwan, by officials of that country or a notary public or a British consular officer accredited to Taiwan, it would be contrary to the international comity of nations for a Hong Kong solicitor to visit Taiwan privately and take affirmations in that country.

28. Counsel for the defendant strongly relied on the absence of any express statutory provisions limiting the power of a Hong Kong solicitor to take affirmations outside Hong Kong. In his submission the general provisions of the Hong Kong legislation should be given full effect and not restricted merely by implication. Furthermore it was emphasised, that the exercise of such powers in Taiwan, was limited to taking an affirmation for use only in a Hong Kong Court and not in Taiwan. Because of this distinction Counsel for the defendants submitted that no question of extraterritoriality arose.

29. In the defendants submission Section 10 of the Oaths and Declarations Ordinance extended the category of affirmations admissible in Hong Kong by allowing certain affirmations admissible in England; it did not have the contrary effect, of reducing the category of affirmations otherwise admissible. It was similarly submitted that the provisions of Order 41 Rule 12(2) only prescribe a particular procedure whereby affirmations taken in a foreign country may be admitted in Hong Kong. The use of the word "may" in Rule 12(2), it was submitted, indicated that this was merely one procedure whcih could be followed and it did not make that procedure mandatory. Accordingly, the submission concluded, an affirmation taken in a foreign country by a Hong Kong solicitor was also admissible.

30. Counsel for the defendants also ventured the submission that the power of a Hong Kong solicitor to take an affirmation out of Hong Kong for use in a Hong Kong Court, was supported not only by statute but at common law. I was referred to the unreported judgment in England of Langton J. , in Fox v. Fox delivered on 27th October 1937 which is noted in 17 'Halsbury's Laws of England' (4th Edn) 222 and in 'Boland and Sayer on Oaths and Affirmations' (2nd End) which at page 5, footnote 26 states:

"A commissioner for oaths has authority to administer an oath in a foreign country: Fox v. Fox ..."

31. The difficulty this submission faces, is that both the footnote at page 5 and a related statement at page 13, seem merely to reflect the language of the express English statutory provisions empowering affirmations to be taken by a commissioner out of England. The decision in Fox v. Fox is consistent with and was no doubt founded on the different English statutory provisions. Certainly in the absence of a copy of the full English judgment I would be unwilling to infer that Langton J. was enunciating a principle of the common, as distinct from the statutory, law.

32. Whether a Hong Kong solicitor can take an affirmation outside Hong Kong, remains fundamentally a question of construction of the relevant statutory provisions. I am satisfied that the proper construction of those provisions is that a Hong Kong solicitor may not take an affirmation outside Hong Kong even for use in Honk Kong. This conclusion is also reinforced by the extraterritorial considerations pressed upon the Court by Counsel for the plaintiff. I therefore hold that a Hong Kong solicitor had no power to take affirmations from the defendants in Taiwan.

33. The failure to have the purported affirmations taken in Taiwan by an authorised person is a more serious breach of the Rules of the Supreme Court than the omission of a residential address. In my view it is not an irregularity which can be cured under Order 41 Rule 4. An affirmation is a solemn statement made by an affirmant in writing. It is usually intended to be used in Court proceedings which, when contentious, concern a disputes between parties. The formal requirements for an affirmation prescribed by law are to ensure, so far as it is procedurally possible, that the contents of an affirmation are accurate and truthful. The requirement for an affidavit to be sworn in accordance with a deponent's religious belief or for an affirmation to be solemnly, sincerely and truly affirmed, serves that important purpose.

34. The requirement that the person who takes an affirmation must have the qualification of a commissioner for oaths or similar recognised qualifications, is twofold. First, it is to ensure that the affirmation is taken in due form with the affirmant being made aware of the important nature of the document he is signing and the necessity for its contents to be accurate and truthful. Secondly, because the affirmation is taken by an officer of the Court or other recognised officer, the Court can rely upon the affirmation's authenticity.

35. A purported affirmation taken by a person not lawfully empowered to do so, lacks both these important twofold qualities. A defect of this nature is a matter of substance. In my view it does not amount to a mere irregularity which can be cured under order 41 Pule 4. The document simply falls far short of being an affirmation affected by irregularities. To the extent that it purports to be an affirmation, it fails to acheive that status and is a nullity. Although I raised this distinction during argument, I have not received any considered argument, whether in such cases it is a nullity or merely an irregularity. If I am wrong and the failure to have the purported affirmations taken by an authorised person is merely an irregularity, I would still in this particular case not be prepared to exercise my discretion under Order 41 Rule 4, in the defendants favour.

36. For in view of all the surrounding circumstances I would have remained unsatisfied as to the documents authenticity. These conclusions dispose of the first order sought in the defendants summons. I am not prepared to allow the purported affirmations to be used in view of the fact that they were not taken by a person authorised under Hong Kong law to take affirmations out of Hong Kong. There remains to be considered the defendants alternative application to allow new duly taken affirmations to be filed containing the affirmants residential addresses.

The Court's discretion

37. Whether the purported affirmations are a nullity or merely irregular, it remains to be determined whether the Court should allow new duly taken affirmations to be filed. The burden is on the defendants to satisfy the Court that it should judicially exercise its discretion in their favour. I accept that whether the affirmations were irregular or a nullity, the same material is relevant to the exercise of the Court's discretion. I also accept, in accordance with the Privy Council's advice in Thamboo Ratnam v. Thamboo Cumarasamy (1965) 1 WLR 8, that to justify the Court extending time and allowing new affirmations to be filed, there must be some material upon which the Court can exercise its discretion in the defendants favour.

38. Counsel for the plaintiff submitted that the Court should not exercise its discretion in favour of the defendants on two main grounds. First, that the prior order of the Court which the defendants have failed to observe was an unless order. Secondly, that the defendants are fugitives from justice. These are useful heads under which matters, relevant to the exercise of the Court's discretion, may be considered.

(a) The unless order

39. Counsel for the plaintiff pointed out that the Court had already ordered that the defence be struck out and judgment entered for the plaintiff if the defendants failed to comply with the terns of the unless order. As to discovery, the defendants had in fact failed to comply with the Court's rules or orders on three successive occasions. First, under Order 24 Rule 2 the defendants had failed to file a list of documents 14 days after pleadings closed. Secondly, the defendants failed to comply with the subsequent order of the Master on 5th February 1988 to file a list of documents within 14 days and verify the same by affirmation. Thirdly, on the plaintiff's striking out summons Godfrey J. , on 14th March 1988, ordered that the defence be struck out unless within 14 days lists of documents and affirmations verifying the same were filed.

40. The plaintiff further complains that the discovery made was palpably incomplete. Each List of documents contained in Part I of Schedule 1 the same 21 documents. The plaintiff submitted that it was clear from the pleadings, the affidavits in the earlier Mareva injunction proceedings and other affidavits filed, that very many more documents were either in the defendants possession or had earlier been in their possession.

41. Counsel for the defendants in addition to emphasizing that the defendants had complied with two of the three elements of the unless order, submitted that the primary purpose of discovery was to enable one party to know what documents were in the other party's possession. He submitted that there was no evidence that the defendants at present had in their possession any documents other than the 21 documents discovered. The plaintiff's main complaint was addressed to the omission from Schedule 2 of a large number of documents which, while no longer held by the defendants, must earlier have been in their possession. It was also pointed out by the plaintiff that even though the defendants had left Hong Kong and may have left many documents behind, the THC documents presumably had always remained in Taiwan.

42. Counsel for the defendants submitted that if Schedule 2 was incomplete, it was concerned with documents the majority of which were not only well known to the plaintiff's but had always been in their possession. Schedule 2, of course, is concerned only with those documents which had been, but at the service of the list were no longer in the possession, custody or power of the defendants. As the defendants no longer lived in Hong Kong or had access to the plaintiff's records, it was submitted that at most Schedule 2 could only have been expanded to include a very general statement that there were other documents which had been in the defendants possession when they were officers of the plaintiff but were not now held by them and in respect of which they no longer had details. A general statement in those terms, it was suggested, would not have been any more helpful to the plaintiff.

43. In any event, the defendants submitted, if the plaintiff thought that discovery was incomplete Order 24 specifically empowered them to pursue two further steps. First the plaintiff could apply for a further and better list. Secondly, under Order 24 Rule 7, it could apply for an order that the defendants make further affirmations as to a specific undiscovered document or classes of document. In view of these specific further discovery remedies, it was submitted that the extent of the defendants initial discovery, was irrelevant to the question of compliance with the unless order.

44. On the exercise of the Court's discretion to extend time under an unless order I was referred to the English Court of appeal judgment in Samuels v. Linzi Dresses Ltd (1981) 1 QB 115 which is accurately summarised in the headnote in these terms:

"Held, dismissing the appeal, that the court had the power to extend time where an "unless" order had been made but had not been complied with, since the modern practice was not to treat the action as dead, but that the power should be exercised cautiously and with due regard to the principle that orders were made to be complied with and not to be ignored; that whether the necessary relief be granted or not was a question for the discretion of the master or judge in chambers; accordingly, although the defendants had delayed for a long time, they had made a real effort to comply with the order at the last moment and the judge had rightly exercised his discretion in their favour. "

45. The defendants in that case had failed to file further and better particulars within the 21 days specified by the unless order and successfully sought a further 6 days extension. As to the defendants failure to file any documents within the 21 day period, Roskill L. J. at page 126 observed:

"They had not done that which they ought to have done. They were not, save perhaps at the very last moment deserving of any sympaty. But at the last moment they had made a real effort to comply with the order and they were perhaps unlucky that their efforts did not meet with: success. "

46. The present case does not fall into the category of those extreme but not uncommon cases where a party against whom an unless order has been made, has taken no step during the time limited under the order and then belatedly seeks an extension of time. It is not unusual for such applications to be refused, although each case necessarily depends on its own facts. But here the defendants substantially complied with two of the three elements of the unless order, within the time limit. I am further prepared to find that within that time limit, acting through solicitors, they filed the remaining documents, namely the affirmations, which they and their solicitors in good faith believed were duly taken. On these facts the present case falls well within the category of cases where a Court would normally be prepared to extend the time under an unless order, to enable a procedural default, which unwittingly arose, to be rectified. Certainly in the absence of any other adverse factors this is a case where I would be prepared to extend the time under the unless order for the further 14 days sought.

47. As to the alleged incomplete discovery, I consider that to the extent that any incompleteness is established in evidence, that is relevant to the exercise of the Court's discretion. On the evidence I am only able to find that Schedule 2 of both List of Documents was incomplete. However, the weight to be given to that default has to be measured in favour of the defendants by the fact that the incomplete portions of the Lists were limited to Schedule 2, did not affect Part I of Schedule 1, and that specific remedies remain available to the plaintiff for further discovery under Order 24. These factors considerably mitigate the gravity of the limited default as to discovery, I am able to find on the evidence available to the Court at this interlocutory stage. So far as the unless order is concerned, I hold that the defendants did make a real effort to comply with all three elements of that order within the time limit imposed thereunder.

        (b) The effect of the defendants being fugitives

from justice

48. Counsel for the plaintiff strongly submitted that the undisputed status of the defendants as fugitives from justice, was a relevant factor adverse to the defendants, which should properly betaken into account before the Court exercised its discretion. The plaintiff's general criticism of the defendants conduct went even wider than their fugitive status and included their failure to comply with conditions of bail; that they unlawfully fled from Hong Kong; had given an illusory address; instructed the two ladies in Taiwan to lie about their whereabouts; have filed a defence to massive charges of conspiracy and fraud, which in effect merely nuts the plaintiff to proof; and have failed to make full and frank discovery.

49. In these circumstances, it was submitted, the Court should not assist defendants who, subject to an unless order, have failed to comply with the Rules. I have already considered and made by findings on some of these factors. All of them, if of varying weight, are relevant matters to take into account. I will now consider the effect of the defendants fugitive status. On this issue the plaintiff heavily relied on the Court of Appeal's judgment in Attorney General v. Lui Lok (1982) HKLR 413. In that case the defendant, a former police officer normally resident in Hong Kong, left before the issue if a warrant of arrest under the Prevention of Bribery ordinance and eventually settled in Taiwan. The Attorney General, frustrated in his effort to obtain the defendant's return to Hong Kong to face the criminal charges, elected to issue civil proceedings in Hong Kong to recover property purchased from nonies received in the circumstances which gave rise to the criminal proceedings.

50. The defendant wished to defend the civil proceedings but was not anxious to return to Hong Kong to give evidence. Application was mace on the defendant's behalf under Order 39 for his evidence in the civil action to be taken by special examiner in Taiwan. In the High Court, Kempster J. , as he then was, granted the defendant's application. The Attorney General appealed; the Court of Appeal upheld the appeal. The Court of Appeal accepted that in relation to the criminal proceedings it was obliged to regard the defendant as innocent. However, while the presumption of innocence applied to the untried criminal proceedings, it was undisputed that the defendant was a fugitive from justice. The Court of Appeal accepted that the respondent, even as a fugitive from justice, was entitled to defend the civil proceedings with all the means normally available in the Courts.

51. However Cons JA went on to make this distinction at page 417:

"But as I see it, he is now asking for something that is not normal. The established form of trial is for the parties who wish to give evidence to be examined viva voce in court before the judge who has to determine the issues. The defendant is asking us to depart from that norm, and the only reason he puts forward is that he is fleeing from the justice administered by the same court to whom he makes his request. For my part that does not appear to me to be something that is "necessary for the purpose of justice", rather the contrary. Even in civil matters justice is comprised of something more than the mere settlement of disputes between individuals. It is something in which the whole community has a general, if usually only residual interest. It would in my view be quite wrong for the courts of this Colony to make such an order in favour of a person who could rightly be said to be ordinarily resident here, yet by his own choice and action has deliberately put himself beyond their jurisdiction. "

Counsel for the plaintiff further submitted that not only was the Court of Appeal's judgment binding on this Court but that the defendants were in even a more adverse position than Lui Lots for, unlike him, they had since 4th March 1988 been subject to an unless order.

52. Counsel for the defendants sought to distinguish the Court of Appeal's judgment on a number of grounds. As to these I accept that in Attorney General v. Lui Lok the defendant's application for his evidence to be taken in Taiwan was expressly made because of his fugitive status; that was the foundation of the application. In the instant case, the defendants fugitive status forms no part of their application for an extension of time under the unless order. The defendants without any leave, were entitled to have their affirmations completed in Taiwan if they complied with the Rules of the Supreme Court and had them taken by a person authorised by Hong Kong law to administer affirmations in Taiwan.

53. Further, Lui Lok sought a major indulgence from the Court to dispense with his oral evidence being adduced in person at the trial. Here the Court is only concerned with affirmations at an interlocutory stage in the action. Conversely while the refusal of the indulgence sought by Lui Lok was not necessarily fatal to his defence and enabled him still to contest the action by other evidence at the trial, in the instant case a refusal to extend time would result in final judgment being entered against the defendants without trial.

54. I am satisfied that the differences between Lui Lok's position and the position of the present defendants which have been advanced by their Counsel, are sufficient to distinguish the Court of Appeal judgment. When I review all the relevant circumstances, including their fugitive status and other conduct I am satisfied that the consequences to the defendants, of disallowing an extension of time would be out of ail proportion to their failure to comply with the Rules. I would record that I have given full consideration to Counsel for the plaintiff's submission that the time has now come for this Court to deal firmly with the defendants. If their failure to comply had been more serious, or if their had been any lack of good faith in completing and filing the purported affirmations, I certainly without hesitation would have rejected their application.

55. I would also record that this is not a case where the defendants deserve any sympathy from this particular Court, unlike the sympathy Roskill L. J. perhaps finally felt for the defendants in Samuels v. Linzi Ltd. The defendants are solely responsible for the position in which they now find themselves. However, I am satisfied that there is material upon which I am entitled on objective grounds to exercise the Court's discretion in their favour. I am also satisfied that in that event no real prejudice would be suffered by the plaintiff. For these reasons I am prepared to exercise the Court's discretion by granting leave to the defendants to file duly completed new affirmations verifying their lists of documents on or before 14 days from the date of this judgment.

56. The plaintiff also asked that if leave were given, that a condition of leave in relation to any new affirmations should be an order in terms of paragraph 2(1) of its summons, namely that the defendants attend on a date to be fixed for cross-examination on their affirmations concerning their addresses. Leave to cross-examine on interlocutory affirmations of this kind is rarely given. Quite apart from the exceptional nature of the order sought, I am satisfied that any such order would at this stage be premature. The precise contents of the new affirmations, including any matters arising on their residential addresses, will not be known until the affirmations are filed. If appropriate the plaintiff will then be able further to consider its position.

57. In the event the plaintiff's summons is dismissed and the defendants have succeeded in respect of the alternative order sought in their summons. Both summonses arise from the repeated failure of the defendants to comply with the Court's Rules as to discovery. In these circumstances the plaintiff is prima facie entitled to costs. There will be an order nisi pursuant to Order 5B(6), that the defendants pay the plaintiff's costs of and occasioned by both summonses in any event to be taxed if not agreed; the order nisi to become absolute unless an application to discharge the same is made within 14 days.