HONG KONG LIFE INSURANCE LTD v. FUNG SIU CHEUNG MICHAEL AND OTHERS

HCA 1164/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1164 OF 2012

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BETWEEN

HONG KONG LIFE INSURANCE LIMITED Plaintiff

and

FUNG SIU CHEUNG MICHAEL 1st Defendant
LOK WAI TUNG 2nd Defendant
YEUNG PUI SHAN 3rd Defendant
PAN ZIKONG 4th Defendant
TAM TAK KEUNG 5th Defendant
WONG SIU CHUN 6th Defendant
YE YAOTANG 7th Defendant
CHENG WING 8th Defendant
LIAO QINGMEI 9th Defendant
NG WAI PUN 10th Defendant
PAN MIN MING 11th Defendant
WONG CHOI KWONG 12th Defendant
(discontinued)
XU JIANDONG 13th Defendant
(discontinued)
WONG SUET YIN 14th Defendant
LO CHUEN HO (羅轉好) 15th Defendant
(discontinued)
CHAN KWOK MING 16th Defendant
KEUNG NGAI MAY 17th Defendant
NGAN KA HO 18th Defendant
LAI KHENG CHOI 19th Defendant
SUEN LING KWOK 20th Defendant
TANG MING HONG 21st Defendant
FENG HUILING 22nd Defendant
CHAN WING KAM 23rd Defendant
(discontinued)
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Before: Hon Chung J in Chambers

Date of Hearing: 12 September 2014

Date of Decision: 12 September 2014

Date of Reasons for Decision: 19 September 2014

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R E A S O N S F O R D E C I S I O N

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Introduction

1. This reasons for decision concerns the application of the 14th defendant (“Mdm Wong”) to vary the injunction order dated 2 September 2014 (“the 2 Sep injunction”). The 2 Sep injunction is in the nature of a Mareva injunction restraining Mdm Wong (among other things) from disposing of her assets.

2. The part of Mdm Wong’s application which was opposed by the plaintiff was her application for withdrawing money from her bankaccount to pay for her legal expenses.

3. At the end of the hearing I dismissed the said part of Mdm Wong’s application. The reasons for doing so appear below.

4. The applicable legal test is undisputed. It has been conveniently summarized in Liu Xian Feng and Another v Liu Bo and Others [2006] 4 HKLRD 33 (applying Ostrich Farming Corp Ltd v Ketchell [1997] EWCA Civ 2953). In short, it involves a two-stage test:

(a) the first stage is in effect that the applicant has to establish on proper evidence that there are no funds or assets availableto him (or her) which can be used to pay legal expenses other than the assets which have been enjoined;

(b) if the applicant succeeds in surmounting the first stage (but not otherwise) the second stage is the exercise of the court’sdiscretionary power to release the enjoined fund for such purpose.

5. As Mdm Wong implicitly (and correctly) accepted during the hearing, the supporting affirmation did not satisfy the above first stage. Leaving aside other possible inadequacies, she has not stated (or explained why) there were no other possible sources of fund. In particular:

(1) Mdm Wong’s husband apparently had his own source of income (he was the one to pay for the monthly mortgage payments for thefamily property). There is no evidence whether as regards his gross, or disposable, income, or why he could not fund Mdm Wong’slitigation;

(2) Mdm Wong’s defence filed in September 2013 stated (among other things) she operated a remittance agent/money-changer business. Her supporting affirmation did not mention anything about this.

6. Mdm Wong’s argument put forth during the hearing that she would later be filing an affirmation as to her assets and income (asrequired by the 2 Sep injunction) is not a sufficient answer to the above inadequacies.

7. Being the applicant who brought this application, it was incumbent upon her to adduce the necessary evidence in support at the timewhen this application was heard. There was no application to adjourn this application (and no reason has been given as to why shewas not ready to have this application heard).

(Andrew Chung)
Judge of the Court of First Instance
High Court

Ms Li Chung Nam of Robertsons, for the plaintiff

Mr Paul H M Leung, instructed by Howell & Co, for the 14th defendant