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

HCA001702/1985

ACTION NO. A1702/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

CHUNG WAI PAPER PRODUCTS MANUFACTORY LIMITED

Plaintiff

AND

YUEN FAT PAPER PRODUCT FTX

Defendant

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Coram: Mantell, J. in Chambers

Date of hearing: 20 March 1985

Date of delivery of Judgment: 20 March 1985

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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 causewhy he should not, failing which the bailiff is enjoined to attach his moveable and immoveable property. The ground for the applicationis that there is probable cause for believing that the Defendant is about to dispose of or remove his property with intent to avoidthe 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 woulddefeat 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 opportunitywhich the procedure provides for the defendant to appear to show cause. What is envisaged is something in the nature of an OrderNisi and therefore one would have thought that an ex-parte application was appropriate. It is curious in those circumstances thatthe 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 standingand that the introduction to other parts of Order 44A and 49B of the express provision that application may or must be ex-parte isof very recent origin. On balance, therefore, after some hesitation I am satisfied that notwithstanding the rule does not expresslyprovide 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 believingthat the Defendant may dispose of his factory equipment and machinery as specified in the second of the two affirmations referredto and moreover that such property is worth in the order of HK$60,000.00. Therefore upon the usual undertaking as to damages andupon reading the affirmations and upon hearing Mr. Kwan for the Plaintiff, and upon having produced before me the writ I am preparedto make an order that a warrant issue in the form of the draft placed before me today calling upon the Defendant by the 27th dayof March to furnish security in the sum claimed or within that period to show cause why he should not, failing which the bailiffwill be commanded to attach all movable or unmovable property of the Defendant within the colony until further order. (21st March1985) After further argument I amend my order of yesterday to vary the period allowed for compliance or within which cause may beshown to 7 days from the date of service of the warrant.

(C.B.D. Mantell)
Judge of the High Court

Representation:

Anthony Kwan of Anthony Kwan & Co. for Plaintiff