RE LUNG SHING FAN

HCMP000251/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MISCELLANEOUS PROCEEDINGS NO.251 OF 1968

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In the matter of Lung Shing Fan

and

In the matter of an application for a writ of Habeas Corpus ad subjiciendum

Coram: Mills-Owens & Huggins, JJ.

Date of Judgment: 6 November 1968

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JUDGMENT

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Huggins, J: This is an application for a writ of habeas corpus, the applicant having been arrested and detained upon a writ of fi.fa. issued in a civil action. The action was entitled “Shaw Brothers (Hong Kong) Limited Plaintiff and Lung Shing Fan (Gentleman)Defendant”. On the face of it, therefore, the action was brought against the defendant in his personal capacity. However, the writwas specially endorsed and the Statement of Claim made it clear that the defendant was in fact sued as executor of his late wife.Bowler v. John Mowlem & Co. Ltd.(1) shows that the endorsement is the vital factor: see also In re Tsang Tin-sun(2). Accordingly there can be no doubt that the defendant was not sued in his personal capacity.

2. Judgment in the action was entered in default of appearance. It is common ground that it was entered in the wrong form for it wasagainst the defendant in his personal capacity whereas it should have been in the following form:

“It is ordered that judgment be entered for the plaintiff in this action against the defendant as executor of deceased forthe amount indorsed on the writ, with interest, if any, and costs to be taxed; the said sum and costs to be levied of the estateof the deceased at the time of his death come to the hands of the defendant as such executor to be administered, if he has or shallhereafter have so much thereof in his hands to be administered, and if he has not so much thereof in his hands to be administered,then, as to the costs aforesaid, to be levied of the goods, chattels and other property of the defendant authorized by law to beseized in execution.”

3. Application was then made to set aside the judgment. We do not have the summons before us but it was presumably taken out under O.32r.6. Upon the first hearing of the summons counsel for the defendant consented to an order that the judgment stand as to $74,000,though with a stay of execution for 28 days, and that the summons as to the balance be adjourned for further argument. In the eventthe summons to set aside the judgment as to the balance was dismissed for want of prosecution, but that is not material to the presentapplication.

4. The first issue we have to decide is whether there was, as is alleged by the judgment creditors, a judgment for $74,000 against theapplicant personally. It is argued on behalf of the applicant that as the original judgment in the sum of $374,000.00 was admittedlydefective the judgment for $74,000 was equally defective and was made without jurisdiction. It seems to me that there are two answersto this argument. The first is that the applicant by his counsel consented to the lesser judgment and consented to it in the formin which it had been entered previously. The consent could be regarded, as counsel for the judgment creditors suggests, as an admissionof a devastavit, namely that he not only had had assets of the estate of his late wife with which to pay the debt but had failedto apply them in payment of the debt. It was suggested from the Bar that it was the intention of the parties that the consent judgmentshould be entered against the applicant personally but that does not appear from the affidavit nor do I think we ought to receiveevidence as to the intention of the parties other than the terms of the order itself. If the intention was to enter judgment in thesum of $74,000 against the applicant in his representative capacity that should have been stated. It was not so stated and I thinkthe applicant is bound by the terms of the consent order. Although for the purposes of argument I did at one stage assume that thedefendant and the defendant as executor were two different persons rather than the same person in two different capacities I thinkthat was a wrong assumption. It follows that counsel representing the applicant on the summons to set aside represented him in bothcapacities and had power to bind him in both capacities. The consent order is, therefore, a complete answer to the present applicationbecause it is not suggested that the applicant has satisfied the judgment.

5. The second answer to the argument is that even if the consent of the applicant to the lesser judgment did not (as I would hold itdid) have the effect of curing the defect in the original judgment, so that it was itself defective, it remained an order of theSupreme Court and, though defective, was not (as has been contended by the applicant) ultra vires. The Supreme Court is a court ofunlimited jurisdiction, a phrase which it is unnecessary to define here. It is not disputed that if certain procedural steps hadbeen taken the Supreme Court could properly enter a judgment against the applicant personally. It follows that there was nothingon the face of the judgment which showed it to be unlawful. A writ of fi. fa. having been subsequently issued against the defendantpersonally that also was on the face of it a valid order. No case has been cited to us where an order of a superior court has beentreated as void in the sense that it was an order which could properly be disregarded without any application to set it aside, onappeal or otherwise. It is true that the judgment creditors thought it necessary to ask leave of the court to enforce the writ offi. fa. against the defendant personally and that an order in terms was made but, as I understand it, this step was taken at theinstance of the bailiff, who had sought some assurance that the writ was to be enforced personally. In my view it was a proper but,in view of the consent judgment, not an essential step and one which had no effect upon the rights of the parties. Until set asideboth the judgment and the writ of fi. fa. were ostensibly good and the act of the bailiff in arresting the applicant and the actof the Commissioner of Prisons in detaining him would not be unlawful.

6. If, contrary to the view which I have expressed, the only judgments in the action had been judgments against the applicant as executorwhich could not, as they stood, be enforced against the applicant personally, it is then said that the order giving leave to enforcethe judgment for $74,000 against the applicant personally was ultra vires. It has been suggested that although there was at one timea procedure under which a judgment against a defendant as executor could be enforced against the defendant personally the procedureis obsolete and that a separate action ought to be brought against the defendant in his personal capacity in order to render himpersonally liable. I prefer to express no decided opinion upon this aspect of the case because it is unnecessary to our decision.

7. I would dismiss the application.

sd. (Alan Huggins)

8. I agree.

sd. (R.H. Mills-Owens)
President.

6th November 1968.

Representation:

Mr. Donnally (Hastings) for the Applicant.

Mr. Zimmern (Deacons) for the Respondent.

Mr. Corbally for the Crown.

(1) (1954) 3 All E.R. 556

(2) (1966) H.K.L.R. 114.